Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments. (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. (c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments. (d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. (e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. (f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion. (g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments, (i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Commitment Increase”) from Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any such Revolving Commitment Increase and assuming that such Revolving Commitment Increase is fully drawn) with a Total Net Leverage Ratio not to exceed 2.75 to 1.00, as of the effectiveness last day of the most recently ended Test Period (with any proceeds of any Incremental Amendment referred Revolving Increase and any Cure Amounts to below (including, in be excluded for purposes of the case cash component of any Incremental Term Loan, after giving effect theretothe Total Net Leverage Ratio), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(aC) or Article 8(f)) the Borrower shall have occurred delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) such Revolving Commitment Increase shall be continuingon the same terms (other than any upfront fees) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of Incremental all Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective Commitment Increases shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), exceed the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Cap. Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit Incremental Cap.
(b) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedherein, the Borrower shall have delivered may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a certificate demonstrating “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Incremental Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) the conditions set forth in reasonable detail Section 4.02 shall be satisfied; provided, further, that if the proceeds of such Incremental Term Loans are being used to finance a Permitted Acquisition or similar Investment, (x) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing 74 Blue Bird Body Company Credit Agreement such Permitted Acquisition or Investment is executed and delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) at the time of consummation and after giving Pro Forma Effect thereto or (i) immediately prior to and after giving effect to the incurrence of such Incremental Revolving Credit Commitment Term Loans, (assuming a full drawing thereofB) and the use of proceeds thereof Total Net Leverage Ratio, calculated on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase as of the end last day of the most recently ended Test Period; , shall not exceed 2.75 to 1.00 (viwith any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio), (C) the Borrower shall deliver to the Administrative Agent (a) have delivered a certificate of each Loan Party dated as of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term loans incurred pursuant to such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increase shall not mature be earlier than the Latest Maturity Date applicable then in effect and the Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Loan then outstanding; Commitment Increase shall be no shorter than the Weighted Average Life to Maturity of the Term Loans, (iiiE) the interest rate margins and, subject to clause (D), the amortization schedule for any term loans incurred pursuant to such Term Commitment Increase shall be determined by the Borrower and the Incremental Term Loans shall not have a weighted average life to maturity shorter than Lenders with the weighted average life to maturity applicable Term Commitment Increases; provided that in the event that the All-In Yield of any Term Commitment Increase effected exceeds the All-In Yield of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less by more than pro rata 50 basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)points, then the Applicable Margin then in effect Rate for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such differential between interest rate floors; term loans incurred pursuant to such Term Commitment Increase minus 50 basis points, and (viF) except as otherwise specified in this Section 2.24, any Incremental Term Facility Amendment shall be on the terms and conditions applicable pursuant to documentation to be determined by the Borrower and the Incremental Term Loans shall be on substantially Lenders with the same terms and conditions (taken as a whole) as the existing applicable Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions Commitment Increases; provided that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms and documentation are not consistent with this Agreement (taken as a whole) are more favorable except to the lenders providing such Incremental Term Loans than those applicable extent permitted by clauses (D) or (E) above), they shall be reasonably satisfactory to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases shall not exceed the Incremental Cap. Each Term Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitment Increase or Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(eii) The Incremental Term Loan Commitments and Incremental in respect of any Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental any Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Revolving Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Incremental Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) Any or by any Incremental Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Effective Date”) of each of the conditions set forth in Section 2.24(a4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental 75 Blue Bird Body Company Credit Agreement Revolving Facility Effective Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, each applicable Incremental Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), of the payment of by any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Incremental Term Loans Lender. An Incremental Term 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 reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit Term Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Effective Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Effective Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); provided that if the proceeds of such Incremental Term Commitments are being used to finance a Permitted Acquisition or similar Investment, (x) the reference in Section 4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the main transaction agreement governing such Permitted Acquisition or Investment is executed and delivered and the absence of an Event of Default under Sections 7.01(a), (b), (h) or (i) immediately prior to and after giving effect to the incurrence of such Incremental Term Commitments, unless it affirmatively agrees in its sole discretion.
(gd) To the extent that the Incremental Upon each Revolving Credit Commitments requested Commitment Increase pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental such Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment 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 such Revolving Commitment Increase and 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 with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the percentage date of such Revolving Commitment Increase that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the aggregate then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving 76 Blue Bird Body Company Credit Commitments Agreement Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurodollar Loans are held by the Revolving Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, Loans outstanding on the date of such increase, there are any Revolving Credit Loans outstandingCommitment Increase, such Revolving Credit Loans shall either be prepaid by the Borrower on such date or prior refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make ABR Revolving Loans to the effectiveness Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Credit Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be prepaid from applied to the proceeds prepayment of additional outstanding ABR Revolving Credit Loans made hereunder (reflecting held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Commitment, in such increase amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Credit Commitments)Commitment Increase, which prepayment shall be accompanied by the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything Upon each Term Commitment Increase pursuant to this Section, each Incremental Term Lender shall make an additional term loan to the contrary Borrower in this Agreement, this a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Term Commitment Increase and Revolving Commitment Increase and shall make available to the Lenders a copy of any each Incremental Term Facility Amendment and Incremental Revolving Facility Amendment.
(f) This Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments to be made available to the Borrower (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below below, no Default or Event of Default shall exist and at the time that any such Commitment Increase is provided (including, and after giving effect thereto) no Default or Event of Default shall exist and the Borrower shall be in compliance with each of the case covenants set forth in Section 7.12 determined on a Pro forma Basis as of any Incremental Term Loanthe last day of the most recently ended Test Period as if the Commitments, after giving effect thereto)to such Commitment Increase, no Event had been fully drawn on the last day of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as such fiscal quarter of the effective date of such Incremental Term Loan or Incremental Revolving Credit Borrower for testing compliance therewith. Each Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under 10,000,000. Notwithstanding anything to the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as aggregate amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments exceed $75,000,000. Each Commitment Increase shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, in effect immediately prior to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Increase. Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increase. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender or by (and each existing Lender will have the right to provide a portion of any Additional LenderCommitment Increase, in each case on terms permitted in this Section 2.14); provided that each of the Administrative Agent andAgent, with respect to Incremental Revolving Credit Commitments, each Issuing the Swing Line Lender and the L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increase if such consent would be required under Section 10.06 10.06(a) for an assignment of Loans or Commitments, as applicable, to such Lender. Each existing Lender shall, by notice to the Borrower and the Administrative Agent given not later than 10 days after the date of the Administrative Agent’s notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Commitment Increase, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the existing Lenders shall have agreed pursuant to the preceding sentence to provide any Commitment Increase, as applicable, in an aggregate amount less than the amount requested by the Borrower, any Commitment Increase may be provided by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender.
”), provided that each of the Administrative Agent, the Swing Line Lender and the L/C Issuer shall have consented (enot to be unreasonably withheld) The Incremental Term Loan to such Additional Lender’s providing such Commitment Increase if such consent would be required under Section 10.06(a) for an assignment of Loans or Commitments, as applicable, to such Additional Lender. Commitments and Incremental Revolving Credit Commitments in respect of Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Credit a Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyAgent, 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 Section 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment Closing Date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than four Incremental Facility Closing Dates may be selected by the Borrower. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively so agrees in its sole discretion.
(g) To . Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
Section, (ia) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this . This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Carters Inc)
Incremental Credit Extensions. (a) The Company may Lead Borrower may, at any time time, on one or from time to time after the Closing Date, by notice 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 applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (pursuant to an Incremental Revolving Facility Amendment to increase the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each other than any Initial Peak Season Commitment) then in effect (any such increase or additional trancheincrease, an “Incremental Revolving Credit Commitment” and Facility”; the Revolving Credit Loans made pursuant theretocommitment thereunder, the an “Incremental Revolving Credit Commitment”; and the loans thereunder, “Incremental Revolving Loans”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each to exceed (x) with respect to the FILO Incremental Revolving Credit Facility under clause (b) below, the Incremental FILO Cap, (y) with respect to the Additional European Incremental Revolving Facility, the 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 Revolving Facility and the Additional European Incremental Revolving Facility), except as expressly set forth below: xxxxx.xx Incremental Revolving Commitment shall may (A) be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if unless otherwise agreed to by the Administrative Agent, Agent in its Permitted Discretion) or (vB) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit any Initial Peak Season Commitment, xlviii.except as applicable, on separately agreed from time to time between the date thereof, dated as of the effective date of such increase Lead Borrower and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No no Lender shall be obligated to provide any Incremental Term Loans Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender; xxxx.xx Incremental Revolving Facility or Incremental Revolving Credit CommitmentsLoan (or the creation, unless it affirmatively agrees provision or implementation thereof) shall require the approval of any existing Lender (other than in its sole discretion.
(g) To the extent that the capacity, if any, as a Lender providing all or part of any Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in Commitment or Incremental Revolving Loan), the existing Revolving Credit Commitments,
Administrative Agent (except (i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically if its rights and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) interests are adversely affected in any material respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and or (ii) ifif otherwise expressly set forth in this Section 2.22) or any other agent or arranger; provided that, on unless otherwise consented to by the date Administrative Agent, the terms of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such FILO Incremental Revolving Credit Commitment be prepaid from Facility or the proceeds of additional Additional European Incremental Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment Facility shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply administratively feasible to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to (as determined by the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.Administrative Agent in good faith);
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Amendment No. 3 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), ) request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the an “Incremental Term Loan Commitments” Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and the loans made thereundertogether with any Incremental Term Facility, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any tranche (each such increase or additional trancheincrease, an “Incremental Revolving Credit Commitment” and Commitment Increase”, together with the Revolving Credit Incremental Term Loans made pursuant thereto, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at conditions to entering into or the time making of Incremental Term Loan or Incremental Revolving Commitment Increase, including as to the timing of any such request condition (as between being made upon execution of an Incremental Facility Amendment (as defined below) or upon the making of any loans thereunder) shall be as agreed to between the Borrower and the relevant Additional Lenders (including the scope of any representations and warranties to be made) and (ii) after giving effect to the effectiveness of any Incremental Facility Amendment referred to below (including, in and at the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except time that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Increase is made or effected, no Default or Event of Default shall have occurred and be continuing (orprovided that, at the option of the Company, solely with respect to any Incremental Facilities incurred in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance connection with a Limited Condition TransactionAcquisition, on no Default or Event of Default shall exist at the date on which time of execution of the definitive agreement documentation for such acquisition or investment is entered into) (except Limited Condition Acquisition). Notwithstanding anything to contrary herein, the extent aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of time. Each Incremental Term Loans Facility shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $100,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (i) shall rank pari passu equal or subordinate in right of payment and of security with the Revolving Credit Loans and the Term Loans, shall be unsecured or, if secured, secured only by the Collateral securing the Secured Obligations on a pari passu or a junior basis and shall only be guaranteed by the Loan Parties (or a subset thereof); provided, that such Incremental Term Loans may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor or a Domestic Regulated Subsidiary, (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable or, in the case of any such Indebtedness that is unsecured or is secured on a junior lien basis to any the Term Loan then outstanding; Facility, at least 91 days following the Latest Maturity Date, (iii) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life remaining Term Loans (without giving effect to maturity of the existing Term Loans; any prepayments), (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory have an amortization schedule (subject to clauses (ii) and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield 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 of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon Borrower and the making lenders of the Incremental Term Loans, ; provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial event that the All-In Yield for any Incremental Term Loans would cause an increase incurred after the Effective Date that are pari passu in right of payment and with respect to security with the interest rate Term Loans incurred on the Effective Date is greater than the All-In Yield for the Term Loans by more than 0.50% per annum, then in effect thereunder, and in such case the interest rate floor (but not All-In Yield for the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and necessary so that the All-In Yield for the Term Loans are equal to the All-In Yield for the Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floorFloor” or the “ABR Floor” applicable to Incremental the outstanding Term Loans shall be on substantially increased to an amount not to exceed the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only “LIBOR floorFloor” or “ABR Floor” applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those prior to any increase in the Applicable Rate applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing such Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
then outstanding) (c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection“MFN Adjustment”), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (a “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “New Term Commitments”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” and, together with any New Term Commitments, the “New Commitments”); provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below (includingor, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Incremental Commitment in respect of New Term Loan, after giving effect theretoLoans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or in connection with any Limited Condition Transaction the First Amendment Transactions, no Event of Default under Article 8(a) or Article 8(f)Specified Default) shall have occurred exist and be continuing, (ii) both immediately before and immediately after the aggregate principal amount effectiveness of any Incremental Term Loans and Incremental Revolving Credit Commitments that Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 7.02(y)4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as . Each tranche of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental New Term Loans or Incremental New Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount C$15,000,000 or US$15,000,000, as applicable (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Revolving Credit Commitment (assuming a full drawing Amount at the time of incurrence or issuance thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and .
(b) customary opinions The terms and provisions of legal counsel to New Commitments (and the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as in respect of the effective date foregoing), of such increase and (vii) there any Class shall be not more than two separate tranches of Revolving Credit Commitments as agreed between the Borrower and Incremental Revolving Credit Commitments in effect at any timethe lenders providing such New Commitments; provided, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.that:
(i) The Incremental Term Loans such New Commitments shall (x) rank pari passu in right of payment and of security with the Revolving Credit Initial Term Loans made on the Closing Date and the 2018 Incremental Term Loans and the Term Loans; (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) the Incremental (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable to any Term Loan then outstanding; Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) the Incremental New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a weighted average life Weighted Average Life to maturity shorter Maturity of no less than the weighted average life Weighted Average Life to maturity Maturity as then in effect for any Class of Term Loans outstanding as of the existing Term Loans; applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans and the 2018 Incremental Term Loans of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and the 2018 Incremental Term Loans of such same currency shall be treated increased to the extent necessary so that the All-In Yield of such Initial Term Loans or 2018 Incremental Term Loans is equal to the All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or 2018 Incremental Term Loan due to the application or imposition of a Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or 2018 Incremental Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or 2018 Incremental Term Loan or (z) any combination of (x) and (y) above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, less than pro rata basis or less greater than pro rata basis in any mandatory and voluntary repayments or prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental principal of Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans hereunder and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the interest rate margin) applicable to case of a prepayment of such Initial New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(vii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be increased deemed to be reasonably satisfactory to the extent of such differential between interest Administrative Agent), and (2) pricing, fees, rate floors; , premiums, optional payment and redemption terms (visubject to the preceding clauses (i) except as otherwise specified in this Section 2.24through (viii)), the terms and conditions applicable to Incremental such New Revolving Commitments, New Term Commitments and New Term Loans shall may be on substantially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent (x) such terms (taken differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as a whole) applicable, and are more favorable reasonably acceptable to the lenders providing Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Incremental Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans than those applicable to being increased, as existing on the existing respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Loans, are added Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Lenders of the existing Term Commitments (and any Term Loans made pursuant to an amendment to thereto); provided, further, that the terms of any New Revolving Commitment may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement executed by is amended to include such financial maintenance covenant or related equity cure for the Company 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 New Revolving Commitment or covenant only applicable to, or for the benefit of, such New Revolving Commitment, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each New Revolving Commitment hereunder (and not for the Administrative Agentbenefit of any other Facility hereunder)).
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Revolving Credit CommitmentsAmount Date”). Incremental New Term Loans may be made, and Incremental or New Revolving Credit Commitments may be provided, made by any existing Lender (but no existing Lender (including the Administrative Agent in its capacity as an existing Lender) shall have any obligation to make a portion of any New Term Loan or New Revolving Commitments) or by any Additional Lender, ; provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheldconditioned, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such Incremental New Revolving Credit Commitments if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (ei) The Incremental (as applicable) shall be met, assuming that the making or provision of such New Term Loan Loans or New Revolving Commitments and Incremental is an assignment of such New Term Loans or New Revolving Credit Commitments to such Person. Commitments in respect of New Term Loans or New Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14 and, in the case of any Incremental Amendment with respect to New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of the type being provided pursuant to the New Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) 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 as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in Section 2.24(aeach case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeapplicable Loan Documents. The Borrowers may Borrower shall use the proceeds (if any) of the Incremental New Term Loans and Incremental or New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any Incremental New Term Loans or Incremental New Revolving Credit Commitments, Commitments unless it affirmatively agrees in its sole discretionso agrees.
(gd) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence[reserved].
(he) Notwithstanding anything to the contrary in Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement, this . This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches Classes of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to below (includingan “Incremental Effective Date”), in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche exist. Each Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered next sentence). Notwithstanding anything to the Administrative Agent contrary herein, except in the case of Refinancing Incremental Term Loans, on a certificate demonstrating in reasonable detail that Pro Forma Basis and after giving effect to the incurrence borrowing of all such Incremental Term Loans , the Senior Secured Leverage Ratio (excluding from the calculation thereof for this purpose the cash proceeds of the aggregate amount of Incremental Term Loans that are the subject of such Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Revolving Credit Commitment (assuming a full drawing thereofEffective Date) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of for the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Period shall be not more less than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms or equal to the Initial Revolving Credit Commitments.
(i) 3.75 to 1.0. 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; (ii) the Incremental then existing Term Loans (including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Latest Maturity Date applicable with respect to any then outstanding Term Loan then outstanding; Loans, (iiic) the Incremental Term Loans shall not have a weighted average life Weighted Average Life to maturity shorter Maturity that is less than the weighted average life remaining Weighted Average Life to maturity Maturity of the existing Term Loans; (iv) the Incremental Class of Term Loans with the longest Weighted Average Life to Maturity and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the other then outstanding Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans, provided, that prior to the latest Maturity Date in effect immediately prior to the Incremental Effective Date, (x) no Additional Credit Extension Amendment may provide for a financial covenant applicable only to, or materially more restrictive than a financial covenant applicable to, the Incremental Term Loans incurred pursuant to such Additional Credit Extension Amendment and (y) the Incremental Term Loans, (I) in the case of any voluntary prepayments with respect to other Classes of Term Loans hereunder, may participate on a pro rata basis or less than or greater than pro rata basis with other Classes of Term Loans hereunder, provided, further, that voluntary prepayments may be applied on a greater than pro rata basis to any Incremental Term Loans only to the extent applied to any Class or Classes of Term Loans with an earlier Maturity Date as compared with the remaining Classes of Term Loans then outstanding (it being understood the following clause (II) shall apply to any refinancing of such Class or Classes); and (II) in the case of any mandatory prepayments with respect to other Classes of Term Loans hereunder, may participate on a pro rata basis or less than pro rata basis, but not on a greater than pro rata basis except for prepayments pursuant to Section 2.05(b)(iii); and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be on substantially determined by the same terms Borrower and conditions the lenders thereof, subject to the limitation set forth in clause (taken as a wholec) as above, provided further, that in the existing event that the All-In Yield of any Incremental Term Loans, other than (x) maturity dateRefinancing Incremental Term Loans, pricingis more than 50 basis points greater than the All-In Yield of the Term B-23 Loans, (including interest rate floorsthen the Applicable Rates for the Term B-3 Loans, interest rate marginas applicable, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, shall be increased to the extent such terms (taken as a whole) are more favorable to necessary so that the lenders providing All-In Yield for such Incremental Term Loans is no more than those applicable to 50 basis points greater than the existing All-In Yield for the Term B-23 Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) applicable. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsLoans. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing Lender or by any other bank or other financial institution approved by the Borrower (any such other bank or other financial institution being called an “Additional Lender, provided that the Administrative Agent and, with ”). Commitments in respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriateexecuted by Holdings, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental . The Additional Credit Extension 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 (solely as such amendments relate to the Administrative Agent and, in any event, not subject to the approval of any Lender, including through the operation of Section 9.01(b) (other than in such Lender’s capacity as the Administrative Agent, if applicable)), and the CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Additional Credit Extension 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Additional Credit Extension Amendment and borrowing of the payment of any fees payable in connection therewith applicable Incremental Term Loan) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionso agrees.
(gb) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this This Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Third Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount exist. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or (other than Specified Incremental Term Loans) and the Revolving Credit Commitment, as applicable, on Commitment Increases shall not exceed the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) 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; , (iiB) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; and (ivC) the Incremental Term Loans shall be treated substantially the same as the Term Loans made on a pro rata or less than pro rata basis the Third Restatement Effective Date (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate marginx) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as Term Loans to the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortizationextent such differences are reasonably acceptable to the Administrative Agent, (y) immaterial terms the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof and (z) terms and conditions that are either only if the Weighted Average Yield applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans exceeds by more than those 0.50% per annum the Weighted Average Yield applicable to any Class of Term Loans outstanding at the existing Term Loans, are added for the benefit time of the Lenders incurrence of the existing such Incremental Term Loans pursuant to an amendment to this Agreement executed by (the Company and amount of such excess over 0.50% per annum, the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection“Yield Differential”), (y) immaterial terms and (z) terms and conditions that are either only applicable after then the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date Applicable Rate with respect to Revolving Credit Commitments.
(d) such Class of Term Loans shall automatically be increased by the Yield Differential upon the making of such Incremental Term Loans. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Incremental Term Loan, and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Parent, Foreign Holdings, Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02(a) and (b) (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrowers may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan loans (the commitments (thereof, the “Incremental Term Loan Commitments,” and the loans made thereunder, the “Incremental Term Loans,” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each and a Lender making such increase or additional trancheloans, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansTerm Lender”), ; provided that that:
(i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment Term Loans, the aggregate amount of Incremental Term Loans shall not exceed an amount equal to the sum of (assuming a full drawing thereofx) $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 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, the use Total First Lien Net Leverage Ratio (without netting the cash constituting proceeds of proceeds thereof the applicable Incremental Term Loan to be incurred and any Permitted Incremental Indebtedness incurred substantially concurrently) would be no greater than 1.50 to 1.00, calculated on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver after giving effect to the Administrative Agent (a) a certificate incurrence of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or and any Permitted Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.Indebtedness incurred substantially concurrently;
(iii) The the Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit other Loans and Commitments hereunder; provided, however, that (i) any Incremental Term Commitments or Incremental Term Loans may provide for the prepayment of such Incremental Term Loans; Loans from Segregated Cash Collateral pursuant to the 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 the benefit of Segregated Cash Collateral shall be subject to Section 2.23;
(iii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; Maturity Date;
(iv) the Incremental Term Loans shall be treated on have a pro rata or less Weighted Average Life to Maturity no shorter than pro rata basis in any mandatory and voluntary prepayments the Weighted Average Life to Maturity of the existing Term Loans; ;
(v) the interest rates (including floors), yields, premiums, fees and discounts, and, subject to clauses (iii) and (iv) above, the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrowers and the applicable Incremental Term Lenders;
(vi) no Default or Event of Default 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 made thereunder); and
(vii) with respect to any Incremental Amendment, if the Effective Yield 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 Term Loan, with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the 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 (after giving effect to interest rate margins (including the Eurodollar Base Rate and ABR floors), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (which shall be deemed to constitute like amount of the date of incurrence of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans exceeds the sum of the Effective Yield then applicable Loan, which shall not be included and equated to the Initial interest rate (collectively, the “All-In Yield”)) with respect to the existing Term Loans and 0.50% by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term Loan Incremental Yield Differential”), then then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Incremental Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential .
(b) Except as set forth in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.242.19(a), the terms and conditions applicable to Incremental Term Loans shall be on treated substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
mandatory and voluntary prepayments (dunless the applicable Incremental Term Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrowers to the Administrative Agent pursuant to this Section 2.24 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Loans.
(c) Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing Lender or by any Additional LenderLender (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 (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, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 10.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments and Incremental Revolving Credit Commitments Loans shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrowers, 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 on the date thereof of each of the conditions set forth in Section 2.24(a), 4.2 (it being understood that all references to the date of such extension of credit or similar language in Section 4.2 shall be deemed to refer to the payment of any fees payable in connection therewith Incremental Facility Closing Date) and such other conditions as the parties thereto shall agreeagree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrowers may will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsLoans, unless it affirmatively agrees in its sole discretionso agrees.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything to the contrary in this Agreementherein, this Section 2.24 2.19 shall supersede any provisions in Sections 2.18 2.12 or 10.01 10.1 to the contrary and the Borrower Borrowers and the Administrative Agent may amend Section 2.18 solely 2.12 to the extent necessary to give effect to the permitted terms and conditions of implement any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement (Navios South American Logistics Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders)Agent, request (xi) one or more increases in additional Classes of term loans hereunder or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans hereunder (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or and/or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments hereunder (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase” and and, together with the Revolving Credit Loans made pursuant theretoIncremental Term Loans, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both subject to Section 1.06, at the time of that any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, Loan or Incremental Revolving Commitment Increase is made or effected (and also immediately after giving effect thereto), (A) (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or y) in connection with any the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition Transaction in which an LCT Election has been made, no Event of Default under Article 8(aSection 7.01(a), (b), (h) or Article 8(f)(i) shall have occurred and be continuing, (ii) continuing at the aggregate principal amount of time that any such Incremental Term Loans Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Revolving Credit Commitments that Term Loan the proceeds of which shall be incurred or that shall become effective shall not exceedused to fund a Limited Condition Transaction in which an LCT Election has been made, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) each of the representations and warranties made by any Loan Party set forth in Article 4 III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the effective date of the effectiveness of any Incremental Facility Amendment with the same effect as though made on and as of such Incremental Term Loan or Incremental Revolving Credit Commitment (ordate, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct or in all respects, as the case may be) as of such earlier date); . 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 (ivx) each tranche $5,000,000 in the case of Incremental Term Loans shall be Loans, or (y) $2,000,000 in an aggregate principal amount that is not less than $50,000,000 and each the case of Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatIncreases and, in each either case, integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than such amount either of the foregoing amounts if (x) either such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall rank pari passu equal in right of payment and of security with the Revolving Credit Loans and the Term Loans; , shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (iib) the except with respect to an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not mature earlier than the Latest Term Maturity Date applicable Date, (c) except with respect to any Term Loan then outstanding; (iii) the an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining Term Loans; , (ivd) the Incremental Term Loans shall be treated on have a pro rata or less than pro rata basis in any mandatory maturity date (subject to preceding clause (b)), and voluntary prepayments of the existing Term Loans; interest rates (v) if the Effective Yield 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 Borrower and the Additional Term Lenders thereunder; provided that, except with respect to (A) an aggregate principal amount of the date of incurrence of such Incremental Term Loans exceeds not greater than the sum of Fixed Incremental Amount, (B) any Incremental Term Loans used to finance a Permitted Acquisition or other similar permitted Investment or (C) any Incremental Term Loans that mature more than one (1) year after the Term Maturity Date, in the event that the Effective Yield then applicable to for any Incremental Term Loans incurred during the first twelve (12) months after the Closing Date is greater than the Effective Yield for the Initial Term Loans and 0.50by more than 0.75% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)per annum, then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to for the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such 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 the Incremental Term Loans minus 0.75% 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 Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (e) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Term Lenders of such differential between interest rate floorsIncremental Term Loans elect to receive a lesser share of any such prepayment); and (vif) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except as otherwise specified in this Section 2.24with respect to matters contemplated by clauses (a), (b), (c), (d) and (e) above but subject to clause (c) below, the terms and conditions applicable to of any such Incremental Term Loans or any Incremental Revolving Commitment Increase, as applicable, shall not be on substantially materially more restrictive to Holdings, the same terms Borrower and conditions (its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than the terms of the Initial Term Loans or Revolving Loans, as applicable, unless (1) as such term is also added for the benefit of any corresponding existing Term Loans or Revolving Loans, other than (x) maturity dateas applicable, pricingwithout the consent of the Administrative Agent or any Lender being required, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection2) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable any such provisions apply after the Latest Maturity Date at the time of any existing Term Loans or, to the extent incurrence of such Incremental Facility or (3) such terms (taken as a whole) are more favorable shall be reasonably satisfactory to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) The Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Commitment Increase shall be on treated the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) including with respect to maturity date thereof) and shall be considered to be part of the Revolving Loans and Revolving Commitments (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, (including interest rate floors, interest rate marginmargins, original issue discount, rate floors and undrawn commitment fees on the Revolving Commitments may be increased and additional upfront or similar fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable may be payable to the lenders providing such the Incremental Revolving Credit Commitments than those applicable Commitment Increase (without any requirement to the pay such fees to any existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentLenders); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments).
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increases.
(e) The Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, 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 Borrower (fnot to be unreasonably withheld), 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 provide any Loans pursuant thereto) Any or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the extent applicable). The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No .
(f) Incremental Facilities may be provided by any existing Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees (in its sole discretion), or, subject to (i) the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant person and (ii) in the case of any Incremental Revolving Commitment Increase, each Issuing Bank and the Swing Line Lender, if such consent would be required under Section 9.04 for assignments of Revolving Loans and Revolving Commitments to the relevant Person.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to Each Additional Lender shall become a Lender for all purposes in connection with this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceAgreement.
(h) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the Borrower) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20.
(i) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower may, at any time time, on one or from time to time after the Closing Date, by notice 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 applicable Lenders), request ) to (xi) add one or more increases in any existing tranche new Classes of Term Facilities and/or increase the principal amount of the Term Loans or one or more additional tranches of under any Term Facility by requesting new term loan commitments to be added to such Term Loans (the any such new Class or increase, an “Incremental Term Loan CommitmentsFacility” and the any loans made thereunderpursuant to an Incremental Term Facility, the “Incremental Term Loans” ”) or and/or (yii) add one or more increases in new Classes of incremental revolving “cash-flow” facilities and/or increase the aggregate amount of the Commitments of any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each any such increase new Class or additional trancheincrease, an “Incremental Revolving Credit CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the Revolving Credit Loans made pursuant theretoloans thereunder, the “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”), ) in an aggregate principal amount not to exceed the Incremental Cap; provided that that:
(i) both no Incremental Commitment may be less than $5,000,000;
(ii) except as separately agreed from time to time between the Borrower 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) no Incremental Facility or Incremental Loan (or 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), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) an Incremental Revolving Facility may have the benefit of a financial maintenance covenant (which shall not be for the benefit of any Term 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 which 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 0.50% 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 0.50%; provided, that this clause (v) shall not apply to any Incremental Term Loans that mature at least two (2) years after the Term 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 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 any then-existing Class of Term 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 request 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 to any Indebtedness may be determined solely by the Borrower in its sole discretion) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral;
(A) any prepayment (other than any scheduled amortization 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 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 Loans that are First Priority Secured Obligations requiring ratable prepayment), except, in each case that the Borrower and the lenders 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);
(xi) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by this Agreement, no Event of Default shall exist immediately prior to or after giving effect to the effectiveness such Incremental Facility;
(xii) except as otherwise required or permitted in this Section 2.22, all other terms of any Incremental Amendment referred Term Facility, if not consistent with the terms of the Initial Term Loans, shall be reasonably satisfactory to below the Borrower and the Administrative Agent (includingit being understood that any terms which are not consistent with the terms of the Initial Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date are deemed to be reasonably acceptable to the Administrative Agent);
(xiii) the proceeds of any Incremental Facility may be used for working capital, general corporate purposes and any transaction or other purpose not prohibited by this Agreement;
(xiv) on the date of the making of any Incremental Term Loans that will be added to any existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding 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 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 in the case of any Incremental Term LoanRevolving Facility, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender Borrower shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such Lender’s or the relevant Additional Lender’s making such provision of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would Commitments; provided, further, that any Additional Lender that is an Affiliated Lender shall be required under subject to the provisions of Section 10.06 for an assignment of Loans or Commitments9.05(h), as applicablemutatis mutandis, to the same extent as if 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 any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower 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 Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to 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, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have 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 from such Additional Lender, (iii) the Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental Amendment may, without the consent of any other Lenders, effect Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new Classes or appropriatesub-Classes in respect of Loans or commitments increased or extended pursuant to this Section 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 CompanyBorrower in connection with the establishment of such new Classes or sub-Classes, to effect in each case on terms consistent with this Section 2.22.
(f) To the extent the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any 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 Revolving Credit CommitmentsTerm Loans having short Interest Periods (i.e., unless it affirmatively agrees in its sole discretionan 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) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this AgreementSection 2.22 or in any other provision of any Loan Document, this 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 2.24 2.22 shall supersede any provisions provision in Sections Section 2.18 or 10.01 9.02 to the contrary and the Borrower and the Administrative Agent may amend shall, to extent applicable, be subject in all respects to Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment1.10.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice of an Authorized Officer of the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), (i) request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan loans or one or more increases to an existing tranche of Term Loans (the commitments (thereof, the “Incremental Term Loan Commitments,” and the loans made thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Term Lender”) or (yii) (A) request one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Loan Commitments (each any such increase increase, a “Revolving Loan Commitment Increase”) or additional tranche(B) subject to Section 2.1(f), the establishment of one or more new Revolving Loan Commitments (any such new commitment, a “New Revolving Loan Commitment” and, together with Revolving Loan Commitment Increases, the “Incremental Revolving Loan Commitments” and, such loans thereunder, the “Incremental Revolving Loans” and, a Lender making such a commitment, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansLender”), ; provided that that:
(i) both The aggregate amount of Incremental Term Loans and Incremental Revolving Loan Commitments incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) No Person shall be an obligor under any Incremental Facility that is not a Loan Party with respect to all Loans and Commitments;
(iii) Both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Event of Default shall exist and, at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), no Event of Default (shall exist; provided that if the proceeds of any Incremental Term Loans or in connection with any Incremental Revolving Loan Commitments are intended to be used to consummate a Limited Condition Transaction Transaction, then the requirements of no Event of Default under Article 8(aset forth in this clause (iii) may be waived or Article 8(fnot required by the applicable Incremental Lenders (other than with respect to a Default or Event of Default pursuant to Sections 11.1(a) and (f));
(iv) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and or Incremental Revolving Credit Loan Commitments that shall may be incurred or that shall become effective shall not exceed, together with denominated in any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, Available Currency (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except it being understood that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Loan Commitment (or, at the option of the Company, may be utilized in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except Available Currencies as and to the extent such representations and warranties are specifically made as of a particular date, provided in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such datethe applicable Incremental Amendment); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, ;
(v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of payment and pari passu in right of security with the Revolving Credit other Loans and Commitments hereunder;
(vi) Other than (x) Customary Bridge Facilities and (y) the Permitted Earlier Maturity Indebtedness Exception, (i) Incremental Term Loans shall not (A) mature earlier than the Latest Maturity Date of all Classes of Term Loans (including Incremental Term Loans) then in effect and (B) have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of the Class of Term Loans (including Incremental Term Loans) then in effect having the Latest Maturity Date (except, in each case, by virtue of amortization of or prepayment of the Term Loans; Loans prior to such date of determination) and (ii) the Incremental Term Revolving Loans shall not mature earlier than the Latest Maturity Date of Revolving Loans (including Incremental Revolving Loans) then in effect (except, in each case, by virtue of prepayment of the Revolving Loans prior to such date of determination);
(vii) Subject to clause (vi) above, (A) the amortization schedule (if any) applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the such Incremental Term Loans shall be treated determined by the Borrower and the applicable Incremental Term Lenders and (B) any such Incremental Revolving Loan Commitment shall not have amortization or scheduled mandatory commitment reductions (other than at the maturity thereof);
(viii) Subject to clauses (iv) and (vii) above and clauses (ix) and (x) below, Incremental Term Loans or Incremental Revolving Loan Commitments shall be subject to the terms, conditions and documentation identical to Term Loans or Revolving Loan Commitments, as applicable, in this Agreement and each other Loan Document; provided that any terms (i) applicable after the Latest Maturity Date of existing Term Loans (including Incremental Term Loans) or (ii) that are also made for the benefit of the Lenders (in respect of any financial covenant applicable to any Incremental Revolving Loan Commitment, that are also made for the benefit of the Lenders under the Revolving Facility) or (iii) any terms reasonably satisfactory to the Administrative Agent, in each case, shall be permitted. Except as permitted in clauses (iii), (iv), (vi) and (vii) above and clauses (ix) and (x) below, all terms and documentation with respect to Incremental Term Loans and Incremental Revolving Loan Commitments that (i) are materially more restrictive on the Borrower and its Restricted Subsidiaries (when taken as a whole) than those with respect to any other Loans under the Facilities or (ii) relate to provisions of a mechanical (including with respect to Collateral and currency mechanics) or administrative nature, shall be reasonably satisfactory to the Administrative Agent;
(ix) The All-In Yield applicable to the Incremental Term Loans or Incremental Revolving Loan Commitments made hereunder shall be determined by the Borrower and the Incremental Term Lenders or the Incremental Revolving Lenders; provided that, (I) if the All-In Yield in respect of any Incremental Term Loans exceeds the All-In Yield in respect of any then existing Term Loans by more than 0.50%, the Applicable Margin of such then existing Term Loans shall be adjusted such that the All-In Yield of such then existing Term Loans equals the All-In Yield of such Incremental Term Loans minus 0.50%, effective upon the making of such Incremental Term Loans; provided further that any amendments to the Applicable Margin in respect of any then existing Term Loans that become effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans are borrowed shall also be included in such calculations and (II) with respect to any Incremental Amendment in respect of Incremental Revolving Loan Commitments, if the All-In Yield in respect of such Incremental Revolving Loan Commitments exceeds the All-In Yield in respect of any then existing Revolving Loan Commitments by more than 0.50%, the Applicable Margin of such then existing Revolving Loan Commitments shall be adjusted such that the All-In Yield of such then existing Revolving Loan Commitments equals the All-In Yield of such Incremental Revolving Loan Commitments minus 0.50%, effective upon the making of such Incremental Revolving Loan Commitment; provided further that any amendments to the Applicable Margin in respect of any then existing Revolving Loan Commitments that become effective subsequent to the Closing Date but prior to the time of such Incremental Revolving Loan Commitments are incurred shall also be included in such calculations; and
(x) Incremental Term Loans may participate (i) on a pro rata basis, greater than pro rata basis or less than pro rata basis in any mandatory and voluntary prepayments of the then existing Term Loans; Facilities and (vii) if the Effective Yield for the Incremental Term Loans as on a pro rata basis or less than pro rata basis (and on a greater than pro rata basis with respect to mandatory prepayments of the date of incurrence of any such Incremental Term Loans exceeds with the sum proceeds of Credit Agreement Refinancing Indebtedness) with respect to any mandatory prepayments of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentFacilities.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(db) Each notice from the Company Borrower pursuant to this Section 2.24 2.15 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Loan Commitments. .
(c) Incremental Term Loans may be made, and Incremental Revolving Credit Loan Commitments may be provided, by any existing Lender or by any Additional LenderLender (provided that no Lender shall be obligated to make all or a portion of any Incremental Term Loan or to provide all or a portion of any Incremental Revolving Loan Commitment), in each case on terms permitted in this Section 2.15; provided that the Administrative Agent and, with in respect to any Incremental Revolving Credit Loan Commitments, each the Issuing Lender Lenders shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Loan Commitments if such consent would be required under Section 10.06 13.4 for an assignment of Loans or Revolving Loan Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Loan Commitments shall become Commitments (or in the case of an Incremental a Revolving Credit Loan Commitment Increase elected to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Loan Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this SectionSection 2.15, including amendments to Sections 2.4(a) and 5.1(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Sections 7.2(a) and (b) (it being understood that all references to the date of such extension of credit or similar language in such Section 2.24(a), 7.2(b) and (unless waived by the Additional Lender) Section 7.2(a) shall be deemed to refer to the effective date of the payment of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree; provided that if the Borrower intends to use the proceeds of any Incremental Term Loans or Incremental Revolving Loan Commitments for the consummation of a Limited Condition Transaction, the conditions set forth in Sections 7.2(a) and (b) may, to the extent mutually agreed between the Borrower and the applicable Incremental Lenders, be limited to the following: (i) in respect of Section 7.2(a), the Specified Representations and (ii) in respect of Section 7.2(b), any Significant Event of Default. The Borrowers Borrower may use the proceeds of the Incremental Term Loans and or Incremental Revolving Credit Loan Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionincluding working capital, capital expenditures, Permitted Acquisitions and other general corporate purposes.
(gd) To Upon each increase in the extent that the Incremental Revolving Credit Loan Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.15, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Loan Commitment Increase (each each, a “Incremental Revolving Credit Loan Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Loan 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 such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Loan Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Loan Commitments of all Revolving Lenders with Revolving Credit Commitments represented by such Revolving Lender’s Revolving Credit Loan Commitment and (ii) 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 Credit Loan Commitment Increase either be prepaid from the proceeds of additional Revolving Credit Loans made hereunder or assigned to a Revolving Loan Commitment Increase Lender (in each case, reflecting such increase in Revolving Credit Loan Commitments, such that Revolving Loans are held ratably in accordance with each Revolving Lender’s pro rata share, after giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided that any existing Revolving Lender electing not to provide a Revolving Loan Commitment Increase shall not be required to fund amounts in an Alternate Currency in excess of such amounts it would otherwise be required to fund by virtue of the immediately preceding sentence.
(he) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.15 shall supersede any provisions in Sections 2.18 Section 2.8 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely 13.12 to the extent necessary they conflict with this Section 2.15.
(f) The Borrower may (I) Incur Incremental Facilities under clause (a), (b) or (c) of the definition of Maximum Incremental Facilities Amount in such order as it may elect in its sole discretion and shall be allowed to give effect classify under which clause such Incremental Facilities are being Incurred at the time of such Incurrence, without giving Pro Forma Effect to any Incremental Facilities or any increases of the Term Facility (or any portion thereof) in each case permitted to be Incurred under such clauses (b) and (c) that is being Incurred in a single transaction or series of related transactions that occur substantially concurrently with an Incurrence under such clause (a) (but giving Pro Forma Effect to the use of proceeds of thereof) when calculating the amount of Incremental Facilities (or any portion thereof) that may be Incurred pursuant to such clause (a) at such time and (II) later reclassify Indebtedness Incurred under clauses (b) or (c) of the second proviso of the immediately preceding sentence as Incurred pursuant to clause (a) of the second proviso of the immediately preceding sentence, if at the time of such reclassification, the Borrower would have been permitted terms and conditions of any Incremental Amendmentto Incur such Indebtedness under such clause (a).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount exist. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed $400,000,000 (the “Incremental Availability”); provided, that the Borrower shall have delivered to may incur additional Incremental Term Loans hereunder and effect additional Revolving Commitment Increases hereunder (the Administrative Agent a certificate demonstrating in reasonable detail that “Incremental Acquisition Loans”), so long as, after giving effect to the incurrence of such Incremental Term Loan or borrowing under such Revolving Credit Commitment Increase, the Senior Secured Incurrence Test (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company Basis) would be in compliance with satisfied (it being understood that Incremental Acquisition Loans may be effected by the Financial Covenants recomputed as Borrower whether or not there is any unused Incremental Availability (subject to satisfaction of the end of Senior Secured Incurrence Test (on a Pro Forma Basis))); provided, further, that the most recently ended Test Period; (vi) the Borrower Incremental Availability shall deliver to the Administrative Agent (a) be reduced on a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted dollar-for-dollar basis by the board aggregate amount of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel all Indebtedness incurred pursuant to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Section 7.03(v). 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; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; , (ivc) the Incremental Term Loans shall be “Loans” hereunder and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loansprepayments); (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) thereof. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender, ”); provided that (i) the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if Commitment Increases if, in the case of an existing Lender, such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender, (ii) with respect to Incremental Term Loans, any Affiliated Lender or Additional Lender.
(e) The providing an Incremental Term Loan shall be subject to the same restrictions set forth in Section 10.07(k) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Revolving Commitment Increases. Commitments in respect of Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) hereunder or (y) one or more increases in the aggregate amount of the Term Loans (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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Loan and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Amendment, (including, in the case of any Incremental Term Loan, after giving effect thereto), A) no Default or Event of Default shall have occurred and be continuing or would result therefrom (or in connection with any Limited Condition Transaction provided that the standard shall be no Event of Default under Article 8(aSection 7.1(a), (j) or Article 8(f)(k) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness for Commitment Increases incurred pursuant to Section 7.02(ya Permitted Acquisition or Investment), the Incremental Cap Amount, (iiiB) each of the representations and warranties set forth herein and in Article 4 the other Loan Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in or all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except respects to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is otherwise qualified by a materiality shall be true and correct in all respectsthreshold) as of such date), except to the extent the same expressly relate to an earlier date; provided that in the case of Permitted Acquisitions or Investments, such representations and warranties may be limited to customary “SunGard” specified representations and warranties, (ivC) each tranche of Incremental Term Loans at the Borrower’s option either (x) except as otherwise agreed by the Additional Lenders providing the relevant Commitment Increase, the Borrower shall be in an aggregate principal amount that is not less than $50,000,000 compliance on a Pro Forma Basis with the covenants contained in Section 6.22 by at least 0.25:1.0 each recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available (and each Incremental assuming full utilization of the Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (xCommitment) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if clause (x) is not applicable, 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 Term Facility shall have a final maturity date no earlier than the Term Termination Date, (E) the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Term Loans, (F) the Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Termination Date and all other terms of any such Incremental Facility (except as set forth in the foregoing clauses) shall be substantially identical to the Revolving Facility or otherwise agreed reasonably acceptable to by the Administrative Agent, (vG) if an to the extent the terms of any Incremental Term Loans are different from the terms applicable to the Term Facility (except with respect to pricing and to the extent permitted by the foregoing clauses), as applicable, such terms shall be reasonably satisfactory 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 with the Term Loans and the Revolving Credit Commitment is requestedLoans or may be unsecured; provided that to the extent any such Incremental Facilities are subordinated in right of payment or right of security, they shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent, (I) the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A), (B), (C), and (E) 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), and (J) all fees or other payments owing pursuant to Section 10.13 in reasonable detail that respect of such Commitment Increase to the Administrative Agent and the Lenders shall have been paid. Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) $400.0 million, plus (ii) an unlimited amount so long as in the case of this clause (ii) after giving effect to such Commitment Increase, the incurrence of such Incremental Revolving Credit Commitment First Lien Leverage Ratio does not exceed 3.25 to 1.00 (assuming a full drawing thereof) and the use of proceeds thereof calculated on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date and assuming all of such increase signed by Commitment Increase is secured on a first lien basis, whether or not so secured and, in the case of a Revolving Credit Commitment Increase or an authorized officer Incremental Revolving Credit Facility, a full drawing of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans Revolving Credit Commitment Increase or Incremental Revolving Credit CommitmentFacility), as applicable, on plus (iii) in the date thereof, dated as case of the effective date of such increase and (vii) there shall be not more than two separate tranches of a Revolving Credit Commitments and Commitment Increase or an Incremental Revolving Credit Commitments Facility that serves to effectively extend the maturity of the Revolving Facility, an amount equal to the reduction in effect at any time, excluding the Revolving Facility to be replaced by a Revolving Credit Commitment Increase or Incremental Revolving Credit Commitments with identical terms to Facility (the Initial Revolving Credit Commitmentstotal 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.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(db) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of any Facility or the addition of a new tranche of the Revolving Credit Commitments Facility (each such increase or additional tranchenew Revolving Credit Facility, a “Revolving Commitment Increase” and, together with any Incremental Term Loans, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansFacility”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Event of Default shall exist and at the time that any such Incremental Term Loan (or in connection with other than any Limited Condition Transaction Incremental Term Loan under the Tranche A Term Facility to be made during the Certain Funds Period) is made (and after giving effect thereto) no Event of Default under Article 8(ashall 97 1002217597 1001820109v3 exist (except in connection with a Permitted Acquisitionan acquisition or Investment in which case no Event of Default pursuant to Section 8.01(a) or Article 8(f)(f) shall have occurred and be continuing, (ii) the aggregate principal amount exist). Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under 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 Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed, at the time the respective Incremental Amendment becomes effective (and after giving pro forma effect to the Incurrence of Indebtedness in connection therewith), the Maximum Incremental Facilities Amount. Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments Facility (including the maturity date in effect at any time, excluding Incremental respect thereof) (provided the applicable margin applicable thereto may be increased if necessary to be consistent with that for the Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Commitment Increase). The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, which, for the avoidance of doubt, may be unsecured, (b) except in the case of the Tranche A Term Facility, shall not mature earlier than the latest Maturity Date with respect to the Term Loans, (c) except in the case of the Tranche A Term Facility, shall not have a shorter Weighted Average Life to Maturity than the then longest remaining Weighted Average Life to Maturity of the Term Loans, (d) except as set forth above and, in the case of the Tranche A Term Facility, except as set forth below, shall be treated substantially the same as the Initial Term Loans (in each case, including with respect to mandatory and voluntary prepayments) and (e) the Applicable Rate for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that (iii) until April 11, 2015, the interest rate margins for the Incremental Term Loans shall not mature earlier be greater than the Latest Maturity Date interest rate margins that may be payable with respect to Term Loans plus 50 basis points (and the interest rate margins applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity class of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent necessary to achieve the foregoing) and (ii) solely for purposes of such differential between the foregoing clause (i), (x) the interest rate floorsmargins applicable to any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to the Arrangers (or their respective affiliates) in connection with the Term Loans or to one or more arrangers (or their affiliates) of the Incremental Term Loans shall be excluded; and (viz) except as otherwise specified in this Section 2.24if the LIBOR or Base Rate “floor” for the Incremental Term Loans is greater than the LIBOR or Base Rate “floor,” respectively, for the existing Term Loans, the terms difference between such floor for the Incremental Term Loans and conditions applicable the existing Term Loans shall be equated to an increase in the Applicable Rate, provided that that (i) the Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as pursuant to documentation to be determined by the existing Term LoansBorrower, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans orprovided that, to the extent such terms and documentation are not consistent with, the Initial Term Facility (taken as a whole) are more favorable except to the lenders providing extent permitted by clauses (b), (c) and (e) above and, in the case of the Tranche A Term Facility, except as permitted by clause (iii) below)), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from the Administrative 98 1002217597 1001820109v3 Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any existing Facility), and (ii) subject to clauses (b) and (c) above, the maturity date and the amortization schedule applicable to the Incremental Term Loans than those applicable shall be determined by the Borrower and the lenders thereof and (iii) the Incremental Amendment with respect to the existing Tranche A Term LoansFacility may, are added without the consent of the Lenders (other than any Lender or Additional Lender agreeing to have a Commitment in respect of the Tranche A Term Facility), add a financial covenant solely for the benefit of the Lenders under the Tranche A Term Facility and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Lenders (and not, for the avoidance of doubt, any other Lenders) and make other corresponding changes to the Loan Documents, including provide that (x) only Lenders holding at least a majority of the existing Tranche A Term Facility and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Facility (voting as one Facility) (and not, for the avoidance of doubt, any other Lenders) shall have the ability to (and be required in order to) amend or waive a breach of such financial covenant, and (y) a breach of such financial covenant shall not constitute an Event of Default with respect to other Facilities or trigger a cross-default under other Facilities until the date on which Tranche A Term Loans pursuant to an amendment to this Agreement executed by and, upon the Company and 2015 Revolving Credit Facility Effective Date (if any), the Administrative Agent.
Revolving Credit Loans have been accelerated and/or the Tranche A Term Commitments (cif any) Incremental and, upon the 2015 Revolving Credit Facility Effective Date (if any), the Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on have been terminated, in each case, by the same terms and conditions as Tranche A Term Lenders and, upon the Initial 2015 Revolving Credit Commitments Facility Effective Date (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionif any), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent(voting as one Facility); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) .. Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (it being understood that no existing Lender has an obligation to make an Incremental Term Loan or provide a Revolving Commitment Increase, as applicable) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment may, without the consent of any Loan Party other than the Borrower, the Agents or the 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.99 1002217597 1001820109v3
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrowers may at any time or from time to time after the Closing Date, by notice by the Administrative Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default under Section 8.01(a) or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental exist. Each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 10,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount a Dollar Amount of $10,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as aggregate amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) exceed $30,000,000. Each notice from the Company Administrative Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans Revolving Commitment Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving
(b) Upon each increase in the Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
2.14, (ix) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (iiy) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hc) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Avaya Inc)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), Lenders request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the an “Incremental Term Loan Commitments” Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and the loans made thereundertogether with any Incremental Term Facility, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any tranche (each such increase or additional trancheincrease, an “Incremental Revolving Credit Commitment” and Commitment Increase”, together with the Revolving Credit Incremental Term Loans made pursuant thereto, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at conditions to entering into or the time making of Incremental Term Loan or Incremental Revolving Commitment Increase, including as to the timing of any such request condition (as between being made upon execution of an Incremental Facility Amendment (as defined below) or upon the making of any loans thereunder) shall be as agreed to between the Borrower and the relevant Additional Lenders (including the scope of any representations and warranties to be made) and (ii) after giving effect to the effectiveness of any Incremental Facility Amendment referred to below (including, in and at the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except time that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Increase is made or effected, no Default or Event of Default shall have occurred and be continuing (orprovided that, at the option of the Company, solely with respect to any Incremental Facilities incurred in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance connection with a Limited Condition TransactionAcquisition, on no Default or Event of Default shall exist at the date on which time of execution of the definitive agreement documentation for such acquisition or investment is entered into) (except Limited Condition Acquisition). Notwithstanding anything to contrary herein, the extent aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of time. Each Incremental Term Loans Facility shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $100,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (i) shall rank pari passu equal or subordinate in right of payment and of security with the Revolving Credit Loans and the Term Loans, shall be secured only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties (or a subset thereof); provided, that such Incremental Term Loans may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor or a Domestic Regulated Subsidiary, (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable or, in the case of any such Indebtedness that is unsecured or is secured on a junior lien basis to any the Term Loan then outstanding; Facility, at least 91 days following the Latest Maturity Date, (iii) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life remaining Term Loans (without giving effect to maturity of the existing Term Loans; any prepayments), (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory have an amortization schedule (subject to clauses (ii) and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield 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 of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon Borrower and the making lenders of the Incremental Term Loans, ; provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial event that the All-In Yield for any Incremental Term Loans would cause an increase incurred after the Effective Date that are pari passu in right of payment and with respect to security with the interest rate Term Loans incurred on the Effective Date is greater than the All-In Yield for the Term Loans by more than 0.50% per annum, then in effect thereunder, and in such case the interest rate floor (but not All-In Yield for the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and necessary so that the All-In Yield for the Term Loans are equal to the All-In Yield for the Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” or the “ABR Floor” applicable to Incremental the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” or “ABR Floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (“MFN Adjustment”), (v) to the extent applicable, the Administrative Agent, acting on substantially behalf of the same holders of such Indebtedness shall be or shall have become party to an intercreditor or subordination agreement reasonably satisfactory to the Administrative Agent, (vi) all terms and conditions (taken as a whole) as documentation with respect to any Incremental Facility shall be no more restrictive than the terms applicable to the existing Term LoansFacility, other than as applicable unless such terms are (x1) maturity date, pricing, applicable after the Term Maturity Date of the then existing Term Facility or (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection2) and amortization, offered to the existing Lenders for inclusion in the Loan Documents (y) immaterial but excluding any terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any the then existing Term Loans or, to Facility). In the extent such terms (taken as a whole) are more favorable to the lenders providing such case of an Incremental Term Loans than those applicable to Loan that is pari passu in right of payment and right of security with the existing Term Loans, are added such Incremental Term Loans may provide for the benefit ability to participate on a pro rata basis, or on less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by hereunder, as specified in the Company and the Administrative Agentapplicable Incremental Facility Amendment.
(c) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Commitments consisting being increased (including with respect to maturity date thereof) and shall be considered to be part of an additional tranche the Class of revolving loans Revolving Loans being increased. The Incremental Term Increase shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof) and commitments shall be considered to be part of the Class of Term Loans being increased. Any Incremental Revolving Commitment Increase and any Incremental Term Increase shall be on the same terms and conditions subject to the same documentation as the Initial Class of Revolving Credit Commitments (other than (x) maturity date and pricingLoans or Class of Term Loans, (including interest rate floorsas applicable, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitmentsbeing increased.
(d) Any Incremental Revolving Commitment Increase shall be documented solely as an increase to the Commitments with respect to the Revolving Credit Facility and shall have terms and conditions identical to those of the Revolving Credit Facility.
(e) Each notice from the Company Borrower pursuant to this Section 2.24 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Commitment Increases.
(f) Commitments in respect of Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect Commitment Increases pursuant to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments this Agreement shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, 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 Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facilities or, unless it agrees, be obligated to provide any Incremental Facilities) Any or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases pursuant to this Agreement shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment 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 appropriatenecessary, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders), including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages). 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this This Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and ”; and, the terms loans made thereunder, funded pursuant to the Incremental Term Commitments are referred to herein as the “Incremental Term Loans” ”) or (y) one or more and\or increases in the amount of the aggregate Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitments”), provided that any such request shall be conditioned upon the following:
(i) both the aggregate amount of Incremental Term Commitments that may be requested by the Borrower may not exceed $150,000,000;
(ii) the aggregate amount of Incremental Revolving Commitments that may be requested by the Borrower may not exceed $25,000,000;
(iii) each notice delivered by the 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 the Incremental Term Commitments being requested and (C) if Table of Contents applicable, the amount of the Incremental Revolving Commitments being requested (which requests in respect of the Incremental Term Commitments and Incremental Revolving Commitments shall be in minimum increments of $25,000,000 and a minimum amount of $5,000,000);
(iv) at the time of any such request and request, after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, and after giving effect thereto)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 may be, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would result therefrom; and
(iiiv) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that Borrower shall be incurred or that shall become effective shall not exceed, together in pro forma compliance with any Indebtedness incurred the financial covenants set forth in Section 8.1 as at the end of the most recent four consecutive fiscal quarter period for which financial statements are required to be delivered pursuant to Section 7.02(y), 7.1 prior to the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as date of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option making of the Company, in the case of Incremental Term Loans or the establishment of the Incremental Revolving Credit Commitments incurred to finance a Limited Condition TransactionCommitments, on as the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or and any Indebtedness incurred under the Incremental Revolving Credit Commitment, Commitments as applicable, if it had occurred on the date thereof, dated as of the effective date first day of such increase four consecutive fiscal quarter period), and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments in any event calculated in a manner consistent with the financial statements described in Section 5.1 and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Regulation S-X. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the existing Term Loans; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Term Loan Maturity Date applicable and (c) shall be treated the same as the existing Term Loans (in each case, including with respect to any Term Loan then outstandingscheduled amortization and mandatory and voluntary prepayments; (iii) it being understood that scheduled payments and prepayments shall be applied pro rata to the Incremental Term Loans shall not have a weighted average life to maturity shorter than based on the weighted average life to maturity aggregate principal amount of the existing Term Loans; (iv) 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 determined by the Borrower and the lenders thereof. The Incremental Revolving Commitments shall be treated on a pro rata or less the same as the Revolving Commitments in all respects, shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans and shall not mature earlier than pro rata basis in the Revolving Termination Date, provided that any mandatory up front fees paid to induce the lenders providing the Incremental Revolving Commitments shall be determined by the Borrower and voluntary prepayments of the existing Term Loans; (v) lenders thereof. The foregoing notwithstanding, if the Effective Yield for effective per annum yield of the Incremental Term Loans as exceeds by more than 0.25% per annum the effective per annum yield of the date of incurrence of such 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 exceeds Loans), the sum Borrower agrees, as a further condition precedent to the establishment of the Effective Yield then applicable to Incremental Term Commitments and the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making incurrence of the Incremental Term Loans, provided that any differential to enter into an amendment to this Agreement, in Effective Yield on account of a differential in interest rate floors shall be required only form and substance satisfactory to the extent an Administrative Agent, to increase in the interest rate floor applicable rate, fees or other compensation payable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions Lenders such that are either only applicable after the Latest Maturity Date of any existing Term Loans or, Lenders receive the same compensation as is to the extent such terms (taken as a whole) are more favorable be provided to the lenders providing such the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit Commitments. Table of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
Contents (cb) Incremental Revolving Credit Term Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such and\or Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing 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, with respect to Incremental in the case of an increase in the Revolving Credit Commitments, each the Issuing Lender and Swingline Lender) shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such establishing an Incremental Term Loans or providing such Commitment and\or Incremental Revolving Credit Commitments Commitment if such consent would be required under Section 10.06 11.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) . The Incremental Term Loan Commitments and and\or Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such CommitmentCommitments, if any, each Additional Lender, if any, and the Administrative Agent (which amendment shall be in form and substance satisfactory to the Administrative Agent.
(f) , each Lender agreeing to provide such Commitments and each Additional Lender, if any). Any 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 CompanyBorrower, 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 Section 2.24(a), Sections 6.1 and 6.2 (it being understood that all references to “the extension of credit on the payment Closing Date” or similar language in such Sections 6.1 and 6.2 shall be deemed to refer to the effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may use In addition to the proceeds 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 Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited Amendment of all amounts required to be paid by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent such Persons such that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each the applicable Incremental Amendment and all such deemed assignment and assumption of participations, payments the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans held by each Revolving Lender with a corresponds to such Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) ifPercentage. All such payments shall be made by the applicable Persons to the Administrative Agent in Dollars in immediately available funds at or before 11:00 a.m., New York City Time, on the date corresponding Incremental Facility Closing Date. Upon receipt of all such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to payments and the effectiveness of such the applicable Incremental Amendment, the Administrative Agent shall wire transfer the corresponding amount to the applicable Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21Lender. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere Borrower shall pay all amounts required under Section 4.11 in this Agreement shall not apply order to give effect to the transactions effected pursuant payments contemplated to the immediately preceding sentencebe made under this Section.
(hc) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 4.16 shall supersede any provisions in Sections 2.18 Section 4.8 or 10.01 11.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions contrary. Table of any Incremental Amendment.Contents
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Amendment No. 1 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term B-1 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term B-1 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term B-1 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 such Initial Term B-1 Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any ; it being understood that Amendment No. 1 constitutes an “Incremental Amendment may, without Amendment” with respect to the consent establishment of any other Lenders, effect such amendments to this Agreement the Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents Term B-1 Loans as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any “Incremental Amendment shall be Term Loans” (subject to the satisfaction on the date thereof of each of the conditions set forth parenthetical in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and clause (ii) if, on of the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior proviso to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsSection 2.24), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Amendment Agreement (Harsco Corp)
Incremental Credit Extensions. (a) The Company may Borrower may, at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) on one or more increases in any existing tranche of Term Loans or occasions pursuant to an Incremental Facility Amendment (i) add one or more additional new tranches of term loan facilities and/or increase the principal amount of the Loans of any existing Class by requesting new commitments to provide such Loans (the any such new tranche or increase, an “Incremental Term Loan CommitmentsFacility” and the any loans made thereunderpursuant to an Incremental Term Facility, the “Incremental Term Loans” ”) or (y) one or more increases in an aggregate outstanding principal amount not to exceed the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Cap; provided that that: (i) both at the time of any such request and after giving effect to the effectiveness no Incremental Commitment in respect of any Incremental Amendment referred Term Facility may be in an amount that is less than $5,000,000 (or such lesser amount to below which the Administrative Agent may reasonably agree), (includingii) 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 such commitments shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or Incremental Term 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 Term Loan, (iv) except as otherwise permitted herein, the terms of any Incremental Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Loans) must be substantially consistent with those applicable to any then-existing Loans or otherwise reasonably acceptable to the Administrative Agent, (v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection Facility that is pari passu with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Initial Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if security, the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of applicable thereto may not be more than 0.50% higher than the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then unless the Applicable Margin then in effect for such Rate with respect to the Initial Term Loans shall automatically is adjusted to be increased by equal to the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable with respect to such Initial Term Loans would cause an increase in the interest rate then in effect thereunderIncremental Facility, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and minus 0.50%, (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable final maturity date with respect to any Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Term Loan Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from at the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms time of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be madeincurrence thereof, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.58
Appears in 1 contract
Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Amendment No. 35 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request requestimmediately prior to and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, the Specified Representations) shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term B-2 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term B-2 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term B-2 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 such Initial Term B-2 Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
; it being understood that (fi) Any Amendment No. 1 constitutes an “Incremental Amendment may, without Amendment” with respect to the consent establishment of any other Lenders, effect such amendments to this Agreement the Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents Term B-1 Loans as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any “Incremental Amendment shall be Term Loans” (subject to the satisfaction on the date thereof of each parenthetical in clause (ii) of the conditions set forth in proviso to Section 2.24(a2.24), of and (ii) Amendment No. 2 constitutes an “Incremental Amendment” with respect to the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion establishment of the Incremental Revolving Credit Commitment (each a and the Loans provided thereunder as “Incremental Revolving Credit Commitment Lender”) Loans” (subject to the parenthetical in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and clause (ii) if, on of the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior proviso to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsSection 2.24), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Incremental Credit Extensions. (a) The Company Borrowers or any Subsidiary Loan Party may at any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in additional Classes of term loans or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunderLoans”), the “Incremental Term Loans” ) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Class (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans made pursuant theretoCommitment Increases, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (includingexcept, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Significant Event of Default or other customary “Sungard” or “certain funds” conditionality that is otherwise agreed to by the Lenders providing such Incremental Facilities. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”).
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the earlier of the Revolving Maturity Date and the maturity date with respect to any other Incremental Term Loan and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the earlier of the Revolving Maturity Date and the maturity date with respect to any other Incremental Term Loan and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of any other Incremental Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrowers and the applicable Additional Lenders; (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrowers, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrowers and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the terms of the Revolving Credit Facility or any other Incremental Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after giving effect theretothe Latest Maturity Date), no Event and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of Default $5,000,000 and integral multiples of $1,000,000 in excess thereof (or in connection with any Limited Condition Transaction no Event of Default unless the Parent Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and set forth above.
(c) The Incremental Revolving Credit Commitments that Commitment Increase shall be incurred or that shall become effective shall not exceed, together treated the same as the Class of Revolving Commitments being increased (including with any Indebtedness incurred pursuant respect to Section 7.02(y), the Incremental Cap Amount, (iiimaturity date thereof) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall considered to be true and correct in all respects) on and as part of the effective date Class of such Incremental Term Loan or Incremental Revolving Credit Commitment Loans being increased (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided it being understood that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed required to by the Administrative Agent, (v) if consummate an Incremental Revolving Credit Commitment is requestedIncrease, the Borrower shall have delivered 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 Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to lenders providing the incurrence of such Incremental Revolving Credit Commitment Increase (assuming a full drawing thereofwithout any requirement to pay such fees to any existing Revolving Lenders)).
(d) and the use The Additional/Replacement Revolving Commitments (i) shall rank equal in right of proceeds thereof on a Pro Forma Basis the Company would be in compliance payment with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower Revolving Loans, shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted be secured only by the board of directors or equivalent governing body of such Loan Party approving such increase Collateral securing the Secured Obligations and (b) customary opinions of legal counsel to shall only be guaranteed by the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Revolving Maturity Date applicable and shall require no mandatory commitment reduction prior to any Term Loan then outstanding; 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 Incremental Term Loans shall not have a weighted average life to maturity shorter than Borrowers and the weighted average life to maturity lenders of the existing Term Loans; such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory Borrowers and voluntary prepayments the lenders of the existing Term Loans; such commitments, (v) if the Effective Yield may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the Incremental Term Loans as overall size of such subfacilities, the fees payable in connection therewith and the identity of the date letter of incurrence 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 Term Loans exceeds the sum of the Effective Yield then applicable Facility Amendment) to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only terms relating to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased Letters of Credit with respect to the extent applicable Class of such differential between interest rate floors; Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) except as may otherwise specified in this Section 2.24, the have terms and conditions applicable to Incremental Term Loans shall be on substantially different from those of the same terms and conditions Revolving Credit Facility (taken as a whole) as the existing Term Loans, other than including currency denomination); provided that (x) maturity date, pricingexcept with respect to matters contemplated by clauses (ii), (including interest rate floorsiii), interest rate margin, original issue discount, upfront fees and call protection(iv) and amortization(v) above, any differences shall be reasonably satisfactory to the Administrative Agent (y) immaterial terms except for covenants and (z) terms and conditions that are either other provisions applicable only applicable to the periods after the Latest Maturity Date of Date) and (y) the documentation governing any existing Term Loans or, 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 the extent include such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added 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 Lenders of the existing Revolving Credit Loans pursuant to an amendment to benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement executed by only for the Company benefit of each revolving credit facility hereunder (and not for the Administrative Agentbenefit of any term loan facility hereunder); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments).
(de) Each notice from the Company Borrowers pursuant to this Section 2.24 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ef) The Commitments in respect of Incremental Term Loan Commitments and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments pursuant to this Agreement shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrowers, and any applicable Subsidiary Loan Party, each Lender agreeing to provide such CommitmentCommitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments pursuant to this Agreement shall be a “Loan” for all purposes of this Agreement and the Administrative Agent.
(f) Any other Loan Documents. The Incremental Facility Amendment 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 necessary, appropriate or appropriateadvisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the CompanyBorrowers, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of any Facility or the addition of a new tranche of the Revolving Credit Commitments Facility (each such increase or additional tranche, an “Incremental new Revolving Credit Commitment” and the Facility, a “Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (or in connection with any Limited Condition Transaction and after giving effect thereto) no Event of Default under Article 8(ashall exist (except in connection with a Permitted Acquisition or Investment in which case no Event of Default pursuant to Section 8.01(a) or Article 8(f)(f) shall have occurred and be continuing, (ii) the aggregate principal amount exist). Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under 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 Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. Any Revolving Commitment Increase shall be on the same terms and Incremental pursuant to the same documentation applicable to the Revolving Credit Commitments Facility (including the maturity date in effect at any time, excluding Incremental respect thereof) (provided the applicable margin applicable thereto may be increased if necessary to be consistent with that for the Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Commitment Increase). The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) except as set forth above, shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments) and (e) the Applicable Rate for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that (iii) until April 11, 2015, the interest rate margins for the Incremental Term Loans shall not mature earlier be greater than the Latest Maturity Date interest rate margins that may be payable with respect to Term Loans plus 50 basis points (and the interest rate margins applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity class of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent necessary to achieve the foregoing) and (ii) solely for purposes of such differential between the foregoing clause (i), (x) the interest rate floorsmargins applicable to any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to the Arrangers (or their respective affiliates) in connection with the Term Loans or to one or more arrangers (or their affiliates) of the Incremental Term Loans shall be excluded; and (viz) except as otherwise specified in this Section 2.24if the LIBOR or Base Rate “floor” for the Incremental Term Loans is greater than the LIBOR or Base Rate “floor,” respectively, for the existing Term Loans, the terms difference between such floor for the Incremental Term Loans and conditions applicable the existing Term Loans shall be equated to an increase in the Applicable Rate, provided that (i) the Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as pursuant to documentation to be determined by the existing Term LoansBorrower, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans orprovided that, to the extent such terms and documentation are not consistent with, the Term Facility (taken as a whole) are more favorable except to the lenders providing such Incremental Term Loans than those applicable extent permitted by clauses (b), (c) and (e) above), they shall be reasonably satisfactory to the existing Term Loans, are Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and any Incremental Facility, no consent shall be required from the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of Agent or any existing Revolving Credit Loans or, Lender to the extent that such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and (ii) subject to clauses (b) and (c) above, the Lenders of amortization schedule applicable to the existing Revolving Credit Incremental Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) lenders thereof. Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (it being understood that no existing Lender has an obligation to make an Incremental Term Loan or provide a Revolving Commitment Increase, as applicable) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment may, without the consent of any Loan Party other than the Borrower, the Agents or the 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in 2.14, (a) if the existing increase relates to the Revolving Credit Commitments,
(i) Facility, each Lender with a Revolving Credit Commitment Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “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 assumedassumed (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 Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving 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 Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at (i) At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches any Class of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Commitment Increase”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Revolving Facility Amendment, (including, in the case of any Incremental Term Loan, after giving effect thereto), A) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or shall result therefrom, (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above, together with reasonably detailed calculations demonstrating compliance with clause (y) of the definition of “Incremental Cap” below to the extent applicable and (C) each Revolving Commitment Increase shall be on the same terms (including interest rate margins and maturity) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, at the time of effectiveness of any given Revolving Commitment Increase, the sum of (i) the aggregate principal amount of the Revolving Commitment Increases entered into after the Effective Date and (ii) the aggregate principal amount of Incremental all Term Loans Commitment Increases incurred after the Effective Date shall not exceed the sum of (x) $163,000,000 and Incremental (y) up to an additional amount such that at the time of such incurrence and after giving effect thereto on a Pro Forma Basis, the Consolidated First Lien Leverage Ratio is less than or equal to 2.75 to 1.00 (provided that (i) for purposes of calculating the Consolidated First Lien Leverage Ratio, any Revolving Credit Commitments that Commitment Increase being entered into shall be incurred assumed to be fully drawn and (ii) the proceeds of any such Revolving Commitment Increase or that shall become effective Term Commitment Increase being implemented and any such substantially concurrent Revolving Commitment Increases and Term Commitment Increases shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered intonetted from Consolidated First Lien Debt) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date“Incremental Cap”); (iv) each tranche of Incremental Term Loans . Each Revolving Commitment Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by Incremental Cap. For the Administrative Agentavoidance of doubt, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors no Lender shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceIncrease.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingexist, (ii) the aggregate principal amount Borrower shall be in compliance with the covenants set forth in Section 7.11 for the Test Period in effect at the applicable Incremental Facility Closing Date (it being understood that if the applicable Incremental Facility Closing Date is to occur prior to the date the December 31, 2007 Test Period has become effective, the levels set forth in Section 7.11 for the December 31, 2007 Test Period shall be deemed to apply), as determined on a Pro Forma Basis and (iii) the Senior Secured Leverage Ratio for the Borrower would be not greater than 4.25:1 as determined on a Pro Forma Basis. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental and the Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Commitment Increases shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) exceed $150,000,000. 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; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; and (ivc) the Incremental Term Loans except as set forth above, shall be treated on a pro rata or less than pro rata basis substantially the same as the Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders providing thereof; provided further that if the Applicable Rate or such similar interest rate margin (which for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to Lenders generally in the primary syndication of such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to Lenders generally in the primary syndication of the Term Loans) relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.25% per annum, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate or such similar interest rate margin (which for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to Lenders generally in the primary syndication of such Incremental Term Loans) relating to such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) minus 0.25% per annum. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Incremental Term Loan, and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) ifCommitment. 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-2 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 Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-2 Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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,
(vK) if an no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) 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 the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (C) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(he) Notwithstanding anything to Effective on the contrary in this Agreementdate of each Incremental Revolving Credit Facility the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to if any, agreed upon by Administrative Agent, the contrary L/C Issuer and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentBorrower.
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Second Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-3 Termination Date latest final maturity date of any Class of Term A Loans 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 latest final maturity date of any Class of Term B Loans then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of theany Class of Term A-3A Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of any Class of Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Second Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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; provided further that no Incremental Facility may be secured by any Collateral (vor assets that would constitute Collateral if the Obligations were secured by such assets) if an at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the Second Restatement Effective Date) shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) 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 the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (C) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(he) Notwithstanding anything to Effective on the contrary in this Agreementdate of each Incremental Revolving Credit Facility the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to if any, agreed upon by Administrative Agent, the contrary L/C Issuer and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentBorrower.
Appears in 1 contract
Samples: Incremental Amendment (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan loans (the commitments (thereof, the “Incremental Term Loan Commitments” and ”, the loans made thereunder, the “Incremental Term Loans” ”, and a Lender making such loans, an “Incremental Term Lender”) or (y) and/or one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, a “Revolving Commitment Increase”, the loans thereunder, the “Incremental Revolving Loans”, and a Lender making such a commitment, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansLender”), ; provided that that:
(i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loansuch Revolving Commitment Increase, after giving effect theretoto such Revolving Commitment Increase, the Total First Lien Net Leverage Ratio shall be less than or equal to the Applicable Total First Lien Net Leverage Ratio Level on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of any Incremental Revolving Loans incurred pursuant to such Revolving Commitment Increase) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 6.1(a) or (b), no Event of Default as the case may be, have been or were required to have been delivered (calculated assuming that such Revolving Commitment Increase is fully drawn throughout such period), whether or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have not a Financial Compliance Date has occurred and be is continuing, ;
(ii) after giving effect to any such Revolving Commitment Increase and any such Incremental Term Loans, the aggregate amount of Revolving Commitment Increases and Incremental Term Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total First Lien Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Term Loans or of any Incremental Revolving Loans incurred pursuant to such Revolving Commitment Increase) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 6.1(a) or (b), as the case may be, have been or were required to have been delivered (calculated assuming that such Revolving Commitment Increase is fully drawn throughout such period) does not exceed 4.50 to 1.00, plus (y) $100,000,000 less the aggregate principal amount of Indebtedness incurred under Section 7.2(b)(vi) (provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x));
(iii) the Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit other Loans and the Term Loans; Commitments hereunder;
(iiiv) the Incremental Term Loans shall not mature earlier than the Latest Term Loan Maturity Date applicable to any Term Loan then outstanding; and the Incremental Revolving Loans shall not mature earlier than the Revolving Termination Date;
(iiiv) the Incremental Term Loans shall not have a weighted average life Weighted Average Life to maturity Maturity no shorter than the weighted average life Weighted Average Life to maturity Maturity of the existing Term Loans; ;
(vi) subject to clauses (iv) and (v) above, (x) the interest rates (and, in the case of any Incremental Term Loan subject to clauses (iv) and (v) above, the amortization schedule) applicable to any such Incremental Term Loans or Revolving Commitment Increase shall be determined by the Borrower and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be, and (y) any such Revolving Commitment Increase shall not have amortization or scheduled mandatory commitment reductions (other than at the maturity thereof);
(vii) no Default or Event of Default 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);
(viii) 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 1.25% or 2.25%, respectively, in the case of any Incremental Term Loan, or any Eurodollar Base Rate or ABR floor in the case of any Revolving Commitment Increase, with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Term Facility or Revolving Facility) with respect to the Incremental Term Loans and/or Revolving Commitment Increase made thereunder (as determined by the Borrower and the applicable Incremental Term Lenders and/or Incremental Revolving Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the Eurodollar Base Rate and ABR floors), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (which shall be treated on a pro rata deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or less than pro rata basis other fees payable in any mandatory connection therewith that are not shared with all Lenders providing such Incremental Term Loan, which shall not be included and voluntary prepayments of equated to the interest rate) with respect to the existing Term Loans; (v) if Loans or Revolving Commitments, as the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% case may be, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term Loan Incremental Yield Differential”), then then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans and/or Revolving Commitments, as applicable, shall automatically be increased by the Term Loan Incremental Yield Differential, effective upon the making of ; and
(ix) the Incremental Term Loans, provided that Loans and Revolving Commitment Increases may be denominated in any differential in Effective Yield on account of a differential in interest rate floors shall be required only currency acceptable to the extent an increase Administrative Agent and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be.
(b) Except as set forth in Section 2.24(a), the interest rate floor applicable to such Initial Incremental 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 such Initial Term Incremental Revolving Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on treated substantially the same terms and conditions (taken as a whole) as the existing Term Loans and the Revolving Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to mandatory and voluntary prepayments (unless the applicable Incremental Term Lenders and/or Incremental Revolving Credit Commitments.
(dLenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.24 2.24(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Commitment Increase.
(c) Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender or by any Additional LenderLender (provided that no Lender shall be obligated to make a portion of any Incremental Term Loan or to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.24, and, to the extent not permitted in this Section 2.24, all terms and documentation with respect to any Incremental Term Loan or Revolving Commitment Increase which (i) are materially more restrictive on the Holdings and the Restricted Subsidiaries, taken as a whole, than those with respect to the Term Loans and Revolving Commitments made on the Closing Date (but excluding any terms applicable after the Term Loan Maturity Date) or (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 andAgent, with respect to Incremental Revolving Credit Commitments, each Issuing Lenders and Swing Line Lender shall have consented (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 11.6(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender.
; provided, further, that the Issuing Lenders and Swing Line Lender shall have consented (esuch consent not to be unreasonably withheld, conditioned or delayed) The to any Revolving Commitment Increase provided by any Additional Lender. Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, 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 on the date thereof of each of the conditions set forth in Section 2.24(a), 5.2 (it being understood that all references to the date of such extension of credit or similar language in Section 5.2 shall be deemed to refer to the payment of any fees payable in connection therewith Incremental Facility Closing Date) and such other conditions as the parties thereto shall agreeagree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees in its sole discretionso agrees.
(gd) To Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Lenders with Revolving Credit Commitments represented by such Revolving Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment Increase either be prepaid from the proceeds of additional Revolving Credit Loans made hereunder or assigned to a Revolving Commitment Increase Lender (in each case, reflecting such increase in Revolving Credit Commitments, such that Revolving Loans are held ratably in accordance with each Revolving Lender’s Pro Rata Share, after giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.212.20. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything to the contrary in this Agreementherein, this Section 2.24 shall supersede any provisions in Sections 2.18 2.17 or 10.01 11.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely 2.17 to the extent necessary to give effect to the permitted terms and conditions of implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Second Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request one or more (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the each such additional tranche under this clause (x), an “Incremental Term Loan CommitmentsTranche” and the term loans made thereunderunder any such Incremental Term Loan Tranche, the “Incremental Term Loans” ”) or and (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments Loan Commitment (each such increase or additional trancheunder this clause (y), an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansLoan Commitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing and at the time that any such Incremental Term Loans are made or Revolving Loan Commitment Increase is provided no Default or Event of Default shall have occurred and be continuing or result therefrom, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties contained herein and in Article 4 the other Credit Documents shall be true and correct in all material respects (except that any representation with the same effect as though such representations and warranty that is qualified by materiality shall be true and correct in all respects) warranties had been made on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on Loan Commitment Increase are made (it being understood and agreed that (x) any representation or warranty which the definitive agreement for such acquisition or investment by its terms is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties specified date shall be required to be true and correct in all material respects only as of such specified date and (except that y) any representation and or warranty that is qualified by materiality as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects) as of respects on such date); , (iii) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the respective Incremental Term Loan Tranche or Revolving Loan Commitment Increase may be incurred without violating the terms of any other material debt of Holdings and its Subsidiaries, (iv) each tranche (x) calculations are made by the Borrower with respect to the Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Calculation Period most recently ended prior to the date of the incurrence of any such Incremental Term Loans or the provision of any such Revolving Loan Commitment Increase, as the case may be, and such calculations shall be in an aggregate principal amount show a Total Leverage Ratio that is not less than $50,000,000 or equal to 0.25 less than the maximum Total Leverage Ratio set forth in Section 10.09 for the Fiscal Quarter then most recently ended and (y) calculations are made by the Borrower with respect to the Interest Expense Coverage Ratio, determined on a Pro Forma Basis as of the last day of the Calculation Period most recently ended prior to the date of the incurrence of any such Incremental Term Loans or the provision of any such Revolving Loan Commitment Increase, as the case may be, and such calculations shall show an Interest Expense Coverage Ratio that is greater than or equal to 0.25 greater than the minimum Interest Expense Coverage Ratio set forth in Section 10.08 for the Fiscal Quarter then most recently ended, (v) each Incremental Term Loan Tranche or the amount of the Revolving Credit Loan Commitment Increase, as applicable, shall be in an aggregate principal amount that is not less than $5,000,000 (provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next clause (ii) above or (y) if otherwise agreed to by the Administrative Agentvi)), (vvi) if the aggregate amount of all Incremental Term Loans made and all Revolving Loan Commitment Increases (taken together) provided pursuant to this Section 2.14 does not exceed the sum of (A) $50,000,000 plus (B) an additional amount if, after giving effect to the incurrence of such additional amount, the Senior Secured Leverage Ratio does not exceed 2.50:1.00, determined on a Pro Forma Basis as of the last day of the Calculation Period most recently ended prior to the date of the incurrence of any such Incremental Term Loans or the provision of any such Revolving Credit Loan Commitment is requestedIncrease, as the case may be (and in the case of any Revolving Loan Commitment Increase, assuming the full utilization thereof, whether or not actually utilized on the first day of such Calculation Period) and (vii) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate demonstrating in reasonable detail that after giving effect executed by an Authorized Officer of the Borrower, (A) certifying to the incurrence best of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in officer’s knowledge, compliance with the Financial Covenants recomputed as requirements of the end of the most recently ended Test Period; preceding clauses (i) through (vi), inclusive, and (B) containing the Borrower shall deliver to the Administrative Agent calculations (ain reasonable detail) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted required by the board preceding clauses (iv), (v) and (vi). All Incremental Term Loans and Revolving Loans, Swingline Loans and Letters of directors or equivalent governing body of such Credit under any Revolving Loan Party approving such increase Commitment Increase (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, and guaranteed under the Subsidiaries Guaranty, on a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Subsidiaries Guaranty.
(b) customary opinions of legal counsel Each Incremental Term Loan Tranche shall be treated substantially the same as the existing Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, however, that (i) the Loan Parties, addressed interest rate applicable to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms may differ from that applicable to the Initial Revolving Credit Commitments.
(i) The existing Term Loans, but if the “effective yield” applicable to a given tranche of Incremental Term Loans (which, for such purposes only, shall rank pari passu in right be deemed to take account of payment any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of security with the Revolving Credit Loans and the Term Loans; (iix) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life of such loans and (y) four years) payable to maturity of the existing Term Loans; (iv) the all Lenders providing such Incremental Term Loans shall be treated on a pro rata but exclusive of any arrangement, structuring or less than pro rata basis other fees payable in any mandatory and voluntary prepayments of the existing connection therewith that are not shared with all Lenders providing such Incremental Term Loans; (v) if the Effective Yield for the Incremental Term Loans determined as of the initial funding date of incurrence of for such Incremental Term Loans exceeds the sum of the Effective Yield “effective yield” then applicable to the Initial any Term Loans and or any other tranche of Incremental Term Loans (determined on the same basis as provided in the preceding parenthetical, with the comparative determination to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial existing Term Loans (including, for the avoidance of doubt, Revolving Loans) subject to a Yield Differential shall automatically be increased by the Term Loan Yield Differential, Differential effective upon the making of the applicable Incremental Term Loans, provided that any differential in Effective Yield on account (ii) the final stated maturity date for a given tranche of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Incremental Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor may be later (but not sooner) than the interest rate marginlatest Maturity Date hereunder, (iii) applicable to such Initial Term Loans shall be increased to the extent amortization requirements for a given tranche of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) may differ, so long as the existing Term Loans, other than (x) average weighted life to maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans is no shorter than those the average weighted life to maturity applicable to the existing then outstanding Term Loans, are added for and (iv) the benefit other terms of the Lenders a given tranche of the existing Incremental Term Loans pursuant may differ if reasonably satisfactory to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Upon each increase in the Revolving Credit Loan Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial pursuant to a Revolving Credit Commitments (other than (x) maturity date and pricingLoan Commitment Increase, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(iA) each RL Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Loan Commitment Increase (each a “Incremental Revolving Credit Commitment New RL Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment New RL Lender will automatically and without further act be deemed to have assumed, a portion of such 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 (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each RL Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment New RL Lender) will equal the percentage of the aggregate Revolving Credit Loan Commitments of all RL Lenders with Revolving Credit Commitments represented by such RL Lender’s Revolving Credit Loan 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 Credit Loan Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Loan Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any RL Lender in accordance with Section 2.212.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loan Tranche or Revolving Loan Commitment Increase. Incremental Term Loans may be made, and Revolving Loan 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 being called an “Additional Lender”), provided that (x) the Administrative Agent shall have consented to such Lender’s or Additional Lender’s making any such Incremental Term Loan, or providing any such Revolving Loan Commitment Increase, if such consent would be required under Section 13.04(b) for an assignment of Loans to such Lender or Additional Lender and (y) in the case of any Revolving Loan Commitment Increase, the Issuing Lender shall have consented to each New RL Lender (such consent to not be unreasonably withheld, delayed or conditioned). Commitments in respect of Incremental Term Loan Tranche and Revolving Loan Commitment Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit 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 Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section, provided, however, that no such amendment shall amend, modify or supplement any matter described in the first or second proviso of Section 13.12(a) without the consent of the requisite Lenders as provided in Section 13.12(a). The effectiveness of any Incremental Amendment shall be subject to the contrary satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in this Agreement, this Section 2.24 7 (it being understood that all references to “the Borrowing Date” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of (x) any Incremental Term Loans only to finance a Permitted Acquisition or make Capital Expenditures and to pay fees and expenses related to such uses and to the incurrence of such Incremental Term Loans and (y) any Loans made pursuant to a Revolving Loan Commitment Increase for the working capital and general corporate purposes of the Borrower and its Subsidiaries. No Lender shall be obligated to provide any Incremental Term Loans or any portion of any Revolving Loan Commitment Increase unless it so agrees.
(e) This Section 2.14 shall supersede any provisions in Sections 2.18 Section 13.06 or 10.01 13.12 to the contrary contrary.”
10. Section 4.01(f) is hereby amended by (i) deleting the text “first anniversary” appearing therein and inserting the Borrower text “six month anniversary” in lieu thereof and (ii) deleting the Administrative Agent may amend text “Effective Date” appearing therein and inserting the text “Second Amendment Effective Date” in lieu thereof.
11. Section 2.18 solely to 5.01(a)(vi) is hereby amended by (i) deleting the extent necessary to give effect to text “first anniversary” appearing therein and inserting the permitted terms text “six month anniversary” in lieu thereof and conditions of any Incremental Amendment(ii) deleting the text “Effective Date” appearing therein and inserting the text “Second Amendment Effective Date” in lieu thereof.
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments to be made available to the Borrower (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred exist and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed covenants set forth in Section 6.10 determined on a pro forma basis as of the end last day of the most recently ended Test Period; Period as if the Commitments, after giving effect to such Commitment Increase, had been fully drawn on the last day of the applicable Test Period (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated assuming for such purpose that such covenants applied as of the date end of such increase signed by an authorized officer Test Period, whether or not such last day of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel Test Period is prior to the Loan Parties, addressed first date that any such covenant is otherwise tested pursuant to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as terms of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms Section 6.10). Notwithstanding anything to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right contrary herein, the aggregate amount of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitments hereunder including all then available Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments exceed $300,000,000. Each Commitment Increase shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, in effect immediately prior to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Increase. Each notice from the Company Borrower pursuant to this Section 2.24 2.11 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans Commitment Increase and such notice may be made, and set forth in the Incremental Revolving Credit Commitments Amendment. Commitment Increases may be provided, provided by any existing Lender or by any Additional Lender, a new Lender in each case in their sole discretion; provided that each of the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each and the applicable Issuing Lender Banks shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or any Lender providing such Incremental Revolving Credit Commitments Commitment Increase, in each case, if such consent would be required under Section 10.06 9.6(c) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan . Commitments and Incremental Revolving Credit Commitments in respect of Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Credit a Commitment Increase to be provided by an existing Lender with that already has such a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement and shall be effected pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, Commitment Increase and the Administrative Agent.
(f) Any . 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 CompanyAgent, to effect the provisions of this SectionSection 2.11. In connection with each Incremental Amendment, Schedule 1.1A shall be amended such that after giving effect to the Commitment Increase the LC Commitments are pro rata amongst the Lenders. The effectiveness LC Commitments of an Issuing Bank may be reduced without its consent to accomplish the foregoing. For the avoidance of doubt any new Lender taking a Commitment Increase shall become an Issuing Bank. While not required to be solely in this form it is anticipated that any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited accomplished simply by this Agreement. an amendment amending Schedule 1.1A. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively so agrees in its sole discretion.
(g) To . Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) 2.11, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each each, a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such LenderXxxxxx’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such LenderXxxxxx’s 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 date of effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (after reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any prepaid Lender in accordance with Section 2.212.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 2.11. This Section 2.11 shall supersede any provisions in Sections 2.18 Section 2.14 or 10.01 9.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), ) request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the an “Incremental Term Loan Commitments” Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and the loans made thereundertogether with any Incremental Term Facility, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any tranche (each such increase or additional trancheincrease, an “Incremental Revolving Credit Commitment” and Commitment Increase”, together with the Revolving Credit Incremental Term Loans made pursuant thereto, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at conditions to entering into or the time making of Incremental Term Loan or Incremental Revolving Commitment Increase, including as to the timing of any such request condition (as between being made upon execution of an Incremental Facility Amendment (as defined below) or upon the making of any loans thereunder) shall be as agreed to between the Borrower and the relevant Additional Lenders (including the scope of any representations and warranties to be made) and (ii) after giving effect to the effectiveness of any Incremental Facility Amendment referred to below (including, in and at the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except time that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Increase is made or effected, no Default or Event of Default shall have occurred and be continuing (orprovided that, at the option of the Company, solely with respect to any Incremental Facilities incurred in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance connection with a Limited Condition TransactionAcquisition, on no Default or Event of Default shall exist at the date on which time of execution of the definitive agreement documentation for such acquisition or investment is entered into) (except Limited Condition Acquisition). Notwithstanding anything to contrary herein, the extent aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of time. Each Incremental Term Loans Facility shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $100,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (i) shall rank pari passu equal or subordinate in right of payment and of security with the Revolving Credit Loans and the Term Loans, shall be unsecured or, if secured, secured only by the Collateral securing the Secured Obligations on a pari passu or a junior basis and shall only be guaranteed by the Loan Parties (or a subset thereof); provided, that such Incremental Term Loans may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor or a Domestic Regulated Subsidiary, (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable or, in the case of any such Indebtedness that is unsecured or is secured on a junior lien basis to any the Term Loan then outstanding; Facility, at least 91 days following the Latest Maturity Date, (iii) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life remaining Term Loans (without giving effect to maturity of the existing Term Loans; any prepayments), (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory have an amortization schedule (subject to clauses (ii) and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield 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 of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon Borrower and the making lenders of the Incremental Term Loans, ; provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial event that the All-In Yield for any Incremental Term Loans would cause an increase incurred after the Effective Date that are pari passu in right of payment and with respect to security with the interest rate Term Loans incurred on the Effective Date is greater than the All-In Yield for the Term Loans by more than 0.50% per annum, then in effect thereunder, and in such case the interest rate floor (but not All-In Yield for the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and necessary so that the All-In Yield for the Term Loans are equal to the All-In Yield for the Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” or the “ABR Floor” applicable to Incremental the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” or “ABR Floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (“MFN Adjustment”), (v) to the extent applicable, the Administrative Agent, acting on substantially behalf of the same holders of such Indebtedness shall be or shall have become party to an intercreditor or subordination agreement reasonably satisfactory to the Administrative Agent, (vi) all terms and conditions (taken as a whole) as documentation with respect to any Incremental Facility shall be no more restrictive than the terms applicable to the existing Term LoansFacility, other than as applicable unless such terms are (x1) maturity date, pricing, applicable after the Term Maturity Date of the then existing Term Facility or (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection2) and amortization, offered to the existing Lenders for inclusion in the Loan Documents (y) immaterial but excluding any terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any the then existing Term Loans or, to Facility). In the extent such terms (taken as a whole) are more favorable to the lenders providing such case of an Incremental Term Loans than those applicable to Loan that is pari passu in right of payment and right of security with the existing Term Loans, are added such Incremental Term Loans may provide for the benefit ability to participate on a pro rata basis, or on less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by hereunder, as specified in the Company and the Administrative Agentapplicable Incremental Facility Amendment.
(c) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Commitments consisting being increased (including with respect to maturity date thereof) and shall be considered to be part of an additional tranche the Class of revolving loans Revolving Loans being increased. The Incremental Term Increase shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof) and commitments shall be considered to be part of the Class of Term Loans being increased. Any Incremental Revolving Commitment Increase and any Incremental Term Increase shall be on the same terms and conditions subject to the same documentation as the Initial Class of Revolving Credit Commitments (other than (x) maturity date and pricingLoans or Class of Term Loans, (including interest rate floorsas applicable, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitmentsbeing increased.
(d) Any Incremental Revolving Commitment Increase shall be documented solely as an increase to the Commitments with respect to the Revolving Credit Facility and shall have terms and conditions identical to those of the Revolving Credit Facility.
(e) Each notice from the Company Borrower pursuant to this Section 2.24 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Commitment Increases.
(f) Commitments in respect of Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect Commitment Increases pursuant to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments this Agreement shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, 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 Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facilities or, unless it agrees, be obligated to provide any Incremental Facilities) Any or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases pursuant to this Agreement shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment 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 appropriatenecessary, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders), including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages). 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this This Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower or any Subsidiary Loan Party may, at any time or from time to time after the Closing Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in additional Classes of term loans or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans (which may include Incremental Delayed Draw Term Loans) (the “Incremental Term Loan Commitments” and the loans made thereunderLoans”), the “Incremental Term Loans” ) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches revolving commitments of Revolving Credit Commitments any Class (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase”) or (iii) one or more additional Classes of revolving commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans made pursuant theretoCommitment Increases, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and subject to Section 1.05, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (includingexcept, in the case of the incurrence or provision of any Incremental Facility in connection with an acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under Section 7.01(a), (b), (h) or (i)) unless, in connection with a Permitted Acquisition or another Investment not prohibited by the terms of this Agreement, customary “SunGard” or “certain funds” conditionality is otherwise agreed to by the Lenders providing such Incremental Facilities. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities and the aggregate principal amount of Incremental Equivalent Debt that can be incurred at any time shall not exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”).
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to Customary Bridge Loans and except with respect to an amount equal to the Maturity Carveout Amount at such time, the maturity date of any Incremental Term Loans shall not be earlier than the Initial Term Loan Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by Borrower and the applicable Additional Lenders, (C)(i) the Incremental Term Loans shall be secured solely by the Collateral on an equal and ratable basis (or a junior basis, subject to a Second Lien Intercreditor Agreement) with the Secured Obligations or shall be unsecured and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Initial Term Loans (except (i) to the extent permitted by clause (A) or (B) above, (ii) as to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions and (iii) any funding conditions applicable to any Incremental Delayed Draw Term Facility), they shall be reasonably satisfactory to the Administrative Agent (it being understood that (x) to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant (which may include any related equity cure with respect thereto) or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after giving effect theretothe Latest Maturity Date and (y) any Incremental Facility that is a delayed draw term loan facility may include such conditions as the relevant lenders under such Incremental Facility may agree), no Event and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of Default $5,000,000 (or in connection with any Limited Condition Transaction no Event of Default unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedset forth above; provided further that, together with any Indebtedness incurred pursuant prior to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty date that is qualified six months after the Effective Date, with respect to any Incremental Term Loans that are secured by materiality shall be true a Lien on the Collateral that ranks pari passu with the Liens securing the Initial Term Loans which are in an aggregate amount of (1) prior to the Conversion Date, $25,000,000, and correct in all respects(2) on and as after the Conversion Date, the greater of (x) $25,000,000 and (y) 100% of Consolidated EBITDA for the effective date of most recent Test Period for which financial statements are internally available determined on a Pro Forma Basis, in the event that the Applicable Rates for such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier greater than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield Applicable Rates for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and by more than 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)per annum, then the Applicable Margin then in effect Rates for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Initial Term Loans are equal to the Applicable Rates for the Incremental Term Loans minus 0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of such differential between interest rate floors; and calculating the applicable increase (viif any) except as otherwise specified in this Section 2.24the Applicable Rates for the Initial Term Loans in the preceding provisos, the terms and conditions applicable to Applicable Rate for such Incremental Term Loans shall be on substantially deemed to be the same terms interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Initial Term Loans and conditions (taken as a whole) as the existing Incremental Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans and call protection) and amortizationthe Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) immaterial terms (1) with respect to the Initial Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor” for the Initial Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Initial Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Initial Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Initial Term Loans shall be required and (z) customary arrangement, structuring, ticking, commitment, underwriting, amendment and consent fees or other similar fees payable to the Lead Arranger (or its Affiliates) in connection with the Term Loans or the Revolving Loans, as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded. Each Incremental Term Loan may otherwise have terms and conditions that are either only applicable after different from those of the Latest Maturity Date of any existing Initial Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term or Revolving Loans, are added for as applicable; provided, further, that the benefit MFN Protection may be waived at any time with the consent of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentRequired Lenders.
(c) The Incremental Revolving Credit Commitments consisting Commitment Increase shall be treated the same as the Class of an additional tranche revolving commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of revolving loans and commitments shall be on being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate marginmargins, original issue discount, rate floors and undrawn commitment fees on the Class of revolving commitments being increased may be increased and additional upfront or similar fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable may be payable to the lenders providing such the Incremental Revolving Credit Commitments than those applicable Commitment Increase (without any requirement to the pay such fees to any existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentrevolving lenders); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments).
(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 and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders 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 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 terms relating to the Letters of Credit with respect to the applicable Class of revolving commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant (and related equity cure) or any other covenant 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 (and related equity cure) or other covenant 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 or other 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 Company Borrower pursuant to this Section 2.24 2.20 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ef) The Commitments in respect of Incremental Term Loan Commitments and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such CommitmentCommitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the Administrative Agent.
(f) Any other Loan Documents. The Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary necessary, appropriate or appropriate, advisable (including changing the amortization schedule (but not decreasing the amortization payments required to be made to any Lender) or extending the call protection or other terms of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans) in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment shall and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other additional conditions as the parties thereto shall agree. The Borrowers Borrower and its Subsidiaries may use the proceeds proceeds, if any, of the Incremental Term Loans and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments for working capital and other general corporate purposes, including the financing of permitted acquisitions, other permitted Investments, Restricted Payments and any other purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loans”), which may be of the same Class as any existing Class of Term Loans (a “Term Loan Commitments” and the loans made thereunderIncrease”) or a separate Class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Loans” Commitments”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase increase, a “Revolving Commitment Increase” or additional tranche, an the “Incremental New Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitments”), ; provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below below, (including, A) subject to the Borrower’s discretion to make an LCT Election in the case of any Incremental connection with a Term Loan, after giving effect thereto)Loan Increase or New Term Commitments, no Event of Default shall exist and (B) except as provided in the immediately following proviso, the condition precedent in Section 4.02(a) shall be satisfied; provided, that, with respect to any incurrence of Term Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment, in connection with any each case, that is a Limited Condition Transaction no Event of Default under Article 8(a) (or Article 8(f)) shall have occurred and be continuing, (ii) if the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(yRequired Lenders otherwise consent), the Incremental Cap Amountforegoing requirement in (B) shall instead be that all Specified Representations (conformed as reasonably necessary for any such Investment or Permitted Acquisition, (iiito reflect at the option of the Borrower customary “SunGard” representations) the representations and warranties in Article 4 shall be true and correct in all material respects respects; provided further that, for purposes of funding any such New Term Loans, the conditions in clauses (except that any representation A) and warranty that is qualified (B) may be waived in full or in part by materiality shall be true and correct in all respects) on and as Lenders holding more than 50% of the effective date of applicable aggregate New Term Commitments and New Term Loans to be incurred pursuant to such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each Amendment. Each tranche of Incremental New Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 1,000,000 (provided that such amount may be less than $ 1,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental New Revolving Credit Commitment Commitments shall be in an aggregate principal amount that is not less than $5,000,000 1,000,000 (provided that, in each case, that such amount may be less than $1,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agentcontrary herein, (v) if an Incremental the aggregate principal amount of the New Term Loans at the time of incurrence thereof, when added to the aggregate principal amount of New Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to Commitments and any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such Incremental New Term Loans and/or New Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit CommitmentCommitments, as applicable, on shall not exceed the date Available Incremental Amount at the time of incurrence or issuance thereof, dated as .
(b) The terms and provisions of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit New Term Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial or New Revolving Credit Commitments., as the case may be (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Term Commitments or New Revolving Credit Commitment; provided, that:
(i) The Incremental such New Term Loans Commitments and New Revolving Credit Commitments shall (x) rank pari passu in right of payment and of security with the Revolving Credit Loans made on the Closing Date and the Initial Term Loans; Loans made on the Amendment No. 2 Effective Date and (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) the Incremental (x) New Term Loans shall not mature earlier than the Latest Original Revolving Credit Maturity Date or the Original Term Loan Maturity Date and (y) New Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial Term Loans (prior to any extension thereto),
(iii) (x) the currency, discounts, premiums, fees, optional prepayment and redemptions terms, subject to clause (ii) above, and the maturity date and amortization schedule, in each case, applicable to any Term Loan then outstanding; (iii) the Incremental New Term Loans shall not have a weighted average life be determined by the Borrower and the Lenders thereunder, and (y) the New Revolving Credit Commitments shall be on the same terms (excluding OID, upfront fees and arrangement, structuring or other fees payable in connection therewith) and pursuant to maturity shorter than the weighted average life same documentation applicable to maturity of the existing Term Loans; Revolving Credit Facility,
(iv) the Incremental interest rate (including margin and floors) applicable to any New Term Loans shall will be treated determined by the Borrower and the Lenders providing such New Term Loans,
(v) the New Term Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margingreater than a pro rata basis) applicable to such Initial in any voluntary repayments or prepayments of principal of Term Loans shall be increased to the extent of such differential between interest rate floors; hereunder and on a pro rata basis or less than a pro rata basis (vi) but not greater than a pro rata basis except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case prepayment of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental New Term Loans and Incremental Revolving Credit Commitments for under Section 2.05(b)(iii)(B)) in any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental mandatory repayments or prepayments of principal of Term Loans or Incremental Revolving Credit Commitmentshereunder, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.and
Appears in 1 contract
Samples: Credit Agreement (Solo Brands, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower Agent may, at any time or from time time, deliver a written request to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (to increase the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in Aggregate Commitments specifying the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments requested (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that provided, that, (i) both at in no event shall the time aggregate amount of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, requested increase in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingAggregate Commitments cause the Aggregate Commitments to exceed $450,000,000, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that such request shall be incurred or that shall become effective shall for an increase of not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amountless than $10,000,000, (iii) except as otherwise specifically agreed by any Lender prior to the representations date hereof, or separately agreed from time to time between Borrower Agent and warranties in Article 4 any Lender, no Lender shall be true obligated to provide such increase in its Commitment and correct in all material respects (except that any representation and warranty that is qualified by materiality the determination to increase the Commitment of a Lender shall be true within the sole and correct in all respects) on and as of the effective date absolute discretion of such Incremental Term Loan or Incremental Revolving Credit Commitment (orLender, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche no increase in the Aggregate Commitments up to $450,000,000 shall require the approval of Incremental Term Loans shall be any existing Lender other than the existing Lender (if any) providing all or part of such increase. Any increase in an aggregate principal amount that is not less the Aggregate Commitments to a total greater than $50,000,000 and each Incremental Revolving Credit Commitment 450,000,000 shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under require the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence approval of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and Required Lenders.
(b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender Lender, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 9.04(b) for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ec) The Incremental Term Loan Commitments Each Lender or Additional Lender providing a portion of the Commitment Increase shall execute and Incremental Revolving Credit Commitments shall become Commitments (or in deliver to Administrative Agent and Borrower Agent all such documentation as may be reasonably required by the case of an Incremental Revolving Credit Administrative Agent to evidence and effectuate such Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or Increase. On the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case effective date of such amendment to this AgreementCommitment Increase, (i) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental Amendment mayCommitment Schedule shall be amended, without the consent of any other Lenders, effect to reflect such amendments Commitment Increase and Administrative Agent is authorized and directed to this Agreement so revise the Commitment Schedule and distribute it to each Lender and the other Loan Documents 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 may be necessary or appropriate, a new Lender pursuant to such increase in the reasonable opinion of Aggregate Commitments shall become a Lender.
(d) As a condition precedent to such Commitment Increase, (i) the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject conditions precedent to the satisfaction on the date thereof making of each of the conditions Revolving Loans set forth in Section 2.24(a4.02 (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, Administrative Agent shall have received an opinion of counsel to Borrowers in form and substance and from counsel reasonably satisfactory to Administrative Agent addressing such matters as Administrative Agent may reasonably request (including an opinion as to no conflicts with other Indebtedness), of the payment of any fees payable in connection therewith (iii) Administrative Agent shall have received an Administrative Questionnaire and such other conditions documents as it shall require for an Additional Lender and Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Commitment Increase and (iv) Administrative Agent shall have received a certificate of each Loan Party signed by an authorized officer of such Loan Party (A) certifying and attaching the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans resolutions adopted by such Loan Party approving or consenting to such Commitment Increase, and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated (B) certifying that, before and after giving effect to provide any Incremental Term Loans such Commitment Increase, no Default exists or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionhas occurred and is continuing.
(ge) To Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
2.23, (i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and 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 Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Aggregate Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.212.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hf) Notwithstanding anything Effective on the date of each increase in the Aggregate Commitments pursuant to this Section 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 contrary amount of the Aggregate Commitments after such increase in this Agreementthe 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, this if any, agreed upon by Administrative Agent, Issuing Banks and Borrowers.
(g) This Section 2.24 2.23 shall supersede any provisions in Sections Section 2.18 or 10.01 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Effective Date, by written notice delivered to the Term Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche additional Classes of term loans (each, an “Incremental Term Loans or Facility”), (ii) one or more additional tranches term loans of the same Class of any existing Class of term loan commitments loans (the each, an “Incremental Term Loan CommitmentsIncrease”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and the loans made thereunderand, together with each such tranche thereafter, the “Incremental Term Loans” Revolving Facilities”) or (yiv) one or more increases in the amount of the any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments Loans (each such increase or additional trancheeach, an “Incremental Revolving Credit Commitment” Increase”, and the together with any Incremental Term Facility, Incremental Term Increase and Incremental Revolving Credit Loans made pursuant theretoFacilities, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan or Incremental Revolving Loan is made or effected, (includingx) no Event of Default (except, in the case of the incurrence or provision of any Incremental Term LoanFacility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, after giving effect thereto), no for which a Specified Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)shall be the standard) shall have occurred and be continuing, continuing and (iiy) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties in Article 4 III shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Facility (or, at the option of the Companyexcept, in the case of the incurrence or provision of any Incremental Term Loans Facility in connection with a Permitted Acquisition or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transactionother Investment not prohibited by the terms of this Agreement, on the date on for which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount of $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 is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall (i) rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans; , (ii) if secured, be secured only by the Incremental Term Loans Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Latest Term Maturity Date applicable to any Term Loan then outstanding; Date, (iiic) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining 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, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; (iv) the provided that, for any Incremental Term Loans shall be treated that rank equal in right of payment with the Term Loans and are secured on a pro rata or less pari passu basis with the Collateral securing the Loan Document Obligations incurred prior to the date that is twelve months after the Effective Date, in the event that the Effective Yield for any such Incremental Term Loans is greater than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of by more than 0.50% per annum, then the Effective Yield then applicable to for the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such differential between interest rate floors; and Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” applicable to Incremental the outstanding Term Loans shall be on substantially increased to an amount not to exceed the same “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 conditions different from those of the Term Loans (taken as a wholeincluding currency denomination); provided that (x) as to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans, other than Loans (x) maturity date, pricingexcept with respect to matters contemplated by clauses (b), (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionc) and amortization(d) above) the terms, conditions and documentation of any such Incremental Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility or Incremental Term Increase, subject to the restrictions and exceptions set forth above.
(yc) immaterial The Incremental Revolving Facilities shall be on terms and (z) terms documentation as determined by the Borrower and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to Revolving Facility; provided that any Incremental Revolving Facility (a) shall (i) rank equal or junior in right of payment with the existing Term Loans, are added (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 provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the benefit ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not 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 Lenders of the existing Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to an amendment to this Agreement executed documentation as determined by the Company Borrower and the Administrative AgentAdditional Revolving Lenders providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(cd) The Incremental Revolving Credit Commitments consisting 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, if required to consummate an Incremental Revolving Increase, the 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 additional tranche of revolving loans and commitments upfront or similar fees may be payable to the lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Incremental Revolving Lenders)). Any Incremental Revolving Increase shall be on the same terms and conditions as pursuant to the Initial same documentation applicable to the Incremental Revolving Credit Commitments Loans (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, excluding upfront fees and call protectioncustomary arranger fees), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(de) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderLoans.
(ef) The Commitments in respect of any Incremental Term Loan Commitments and Increase or Incremental Revolving Credit Commitments Increase shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender 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 prior written consent of the Borrower (fnot to be unreasonably withheld), 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 provide any Incremental Term Loans or Incremental Revolving Loans) Any or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Term Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and or Incremental Revolving Credit Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Installed Building Products, Inc.)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans hereunder or increases in the aggregate amount of the Term B Loans (the each such increase, a “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” Commitment Increase”) or (y) from one or more Additional Term Lenders or (ii) increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit CommitmentCommitment Increase” and together with the Term Commitment Increase, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Amendment, (including, in the case of any Incremental Term Loan, after giving effect thereto), A) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or shall result therefrom, (iiB) the aggregate principal amount maturity date of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred any term loans or that shall become effective shall not exceed, together with any Indebtedness revolving loans incurred pursuant to Section 7.02(y)such Term Commitment Increase or Revolving Credit Commitment Increase, as applicable, shall not be earlier than the Incremental Cap AmountTerm B Termination Date or Revolving Credit Termination Date, as applicable, (iiiC) the representations and warranties in Article 4 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 Loans; (D) the Borrower shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct compliance on a Pro Forma Basis with the covenants contained in all respects) on and Section 6.22 recomputed as of the effective date last day of such Incremental Term Loan or Incremental the most recently ended fiscal quarter of the Borrower (and assuming full utilization of the Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such dateCommitment); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (vE) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence of such Incremental Revolving Credit Commitment effect set forth in subclauses (assuming a full drawing thereofA), (C) and the use of proceeds thereof on a Pro Forma Basis the Company would be in (D) above, together with reasonably detailed calculations demonstrating compliance with the Financial Covenants recomputed subclause (C) above (which calculations shall, if made as of the end last day of any fiscal quarter of the most recently ended Test Period; (vi) Borrower for which the Borrower shall deliver 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), (aF) a certificate 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 Facility”), as applicable, shall not be greater than that with respect to the existing Term B Facility or existing Revolving Facility, as applicable, plus 0.50% per annum unless the yield applicable to the existing Term B 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 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 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 duration, ticking or similar fee (which shall be deemed to constitute like amounts of each Loan Party dated OID) payable by the Borrower to the Term B Lenders or Revolving Lenders, as applicable, or the applicable Incremental Facility 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 less, the remaining life to maturity of the date applicable Incremental Facility), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or its affiliates in connection with the existing Term B Facility or existing Revolving Facility, as applicable, or to one or more arrangers (or their affiliates) of the applicable Incremental Facility shall be excluded and (z) if the eurodollar rate in respect of such Incremental Facility includes a floor greater than any floor applicable to 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 revolving loans incurred pursuant to such Revolving Credit Commitment Increase will mature no earlier than, and will require no scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Termination Date and all other 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 Commitment Increase are different from the terms applicable to the Term B Facility (except to the extent permitted by the foregoing clauses), such terms shall be reasonably satisfactory to the Administrative Agent, (I) all fees or other payments owing pursuant to Section 10.13 in respect of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and the Lenders shall have been paid, and (J) each lender under of the Incremental Term Loans representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (or Incremental Revolving Credit Commitment, as applicable, on all respects to the date thereof, dated extent otherwise qualified by a materiality threshold) as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any timedate, excluding Incremental Revolving Credit Commitments with identical terms except to the Initial Revolving Credit Commitments.
extent the same expressly relate to an earlier date. Notwithstanding anything to contrary herein, the sum of (i) The Incremental Term Loans shall rank pari passu in right the aggregate principal amount of payment all Commitment Increases and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans aggregate principal amount of all Commitment Increases (as defined under the Second Lien Loan Agreement) under the Second Lien Loan Agreement shall not mature earlier than exceed $350,000,000 (plus, in the Latest Maturity Date applicable case of a Revolving Credit Commitment Increase that serves to any Term Loan then outstanding; (iii) effectively extend the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Revolving Facility, an amount equal to the reduction in the Revolving Facility to be replaced by a Revolving Credit Commitment Increase). Each Term Loans; (iv) the Incremental Term Loans Commitment Increase shall be treated on in a pro rata or minimum principal amount of $50,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than pro rata basis in any mandatory and voluntary prepayments of $50,000,000 if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(db) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Increase or Term Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative AgentIncrease.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Facility (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”); provided, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), (A) no Default or Event of Default shall exist and (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (iiB) the aggregate principal amount Borrower shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25 million (provided, that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25 million if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) the next sentence); provided that in connection with a Limited Condition Acquisition, if otherwise agreed to by the Administrative AgentLenders providing such Incremental Facility, the representations and warranties made by the Borrower shall be limited to customary “specified representations” and those representations of the seller or the target company (vas applicable) if an included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and that give the applicable parties the ability to terminate such acquisition agreement; (B) no Default shall have occurred and be continuing or be caused by the Revolving Commitment Increase or incurrence of the Incremental Revolving Credit Commitment Term Loan (provided that solely with respect to Incremental Term Loans incurred in connection with a Limited Condition Acquisition, to the extent the Lenders participating in such tranche of Incremental Term Loans agree, no Default shall exist at the time of the execution of the definitive documentation for such Limited Condition Acquisition and no Default under Section 8.01(a) or Event of Default under Sections 8.01(f) shall exist at the time such Limited Condition Acquisition is requestedconsummated) and (C) subject to the terms of Section 1.08(f) in respect of Limited Condition Acquisitions, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as financial covenant set forth in Section 7.09 for the applicable Test Period (determined on a pro forma basis after giving effect to such incurrence of the end Incremental Facility and any related prepayment of the most recently ended Test Period; (vi) the Borrower shall deliver Indebtedness). Notwithstanding anything to the Administrative Agent (a) a certificate contrary herein, the aggregate amount of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under 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 Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Extended Revolving Credit Commitments and pursuant to Section 2.16) shall not exceed the Maximum Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit CommitmentsFacilities Amount.
(ib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (i) shall have the same guarantees as, and rank pari passu or junior in right of payment and of security with with, the Revolving Credit Loans and, the Term B Loans and the Term Loans; B-1 Loans (provided, that any junior Liens on the Collateral incurred pursuant to any such Incremental Term Loans shall be subject to a Second Lien Intercreditor Agreement), (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any the Term Loan then outstanding; B Loans or Term B-1 Loans, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term B Loans or Term B-1 Loans, (iv) shall 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 Term B Loans or Term B-1 Loans, and (v) shall bear interest at rates and be entitled to upfront fees as shall be determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for any Incremental Term Loans shall exceed the All-In Yield with respect to the then-outstanding TermTerm B Loans or Term B-1 Loans by more than 50 basis points, then the interest rate margins applicable to such Class of Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower; provided that, to the extent such terms and documentation are not have a weighted average life consistent with the Term B Facility or Term B-1 Facility (except to maturity shorter than the weighted average life extent permitted by clauses (i) through (v) above), they shall be reasonably satisfactory to maturity the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, 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 any corresponding existing Term Loans; ) and subject to clauses (ivii) and (iii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, Borrower and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentthereof.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender”); provided, provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment mayshall, without the consent of any other the Agents or the 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 Company, Borrower to effect the provisions of this SectionSection 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 applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable (unless specified in the applicable Incremental Amendment to form an increase in any previously established Class of Term Loans). The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other further conditions as the parties thereto Borrower and the applicable Lenders and Additional Lenders shall agree. The Borrowers Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees in its sole discretionso agrees.
(gd) To Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.14, (a) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional 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 increase in Revolving 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 Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, this so long as no Event of Default has occurred pursuant to Section 2.24 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis.[Reserved].
(f) The 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 reflect any Incremental Term Loans provided on a “certain funds” basis) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Incremental Credit Increase is provided with the benefit of the applicable Loan Documents.
(g) This Section 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrowers may at any time or from time to time after the Closing Amendment No. 4 Effective Date, by notice from the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(ai) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties in Article 4 V shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent where such representations and warranties are specifically made as of a particular expressly relate to an earlier date, in which case such representations and warranties shall be have been true and correct in all material respects (as of such earlier date and except to the extent that any a particular representation and or warranty that is already qualified by materiality materiality, in which case such representation or warranty shall be true and correct in correct), (ii) no Default or Event of Default shall exist or would result therefrom and (iii) the aggregate principal amount of all respectsRevolving Credit Commitment Increases shall not exceed $50,000,000.
(b) as of such date); (iv) each tranche of Incremental Term Loans Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a whole multiple of $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that 500,000 which is not less than $5,000,000 10,000,000 (provided that, in each case, that such amount may be less than such amount $10,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause Section 2.08(a)(iii) above).
(iic) above or (y) if otherwise agreed The Revolving Credit Loans made pursuant to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent Increases (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments made under and Incremental Revolving Credit Commitments documented in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms this Agreement or pursuant to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans an amendment hereto and shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata substantially the same as or less favorably than pro rata basis in any the Revolving Credit Loans (including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”voting rights), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrowers pursuant to this Section 2.24 2.08 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans Revolving Credit Commitment Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender or by any other bank or other financial institution selected by the Borrowers (any such bank or other financial institution being called an “Additional Lender, ”); provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making providing any such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 11.06 for an assignment of Loans or Commitments, as applicable, Revolving Credit Commitments to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental . Revolving Credit Commitments in respect of Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrowers, to effect the provisions of this SectionSection 2.08. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith 4.02 and such other conditions as the parties thereto shall agree. The Borrowers may will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) 2.08, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each each, a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (iib) if, on the date of such increase, there are any Revolving Credit Loans outstanding, the Lenders (including the Additional Lenders) shall make such Revolving Credit Loans shall on or prior to payments as directed by the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase Administrative Agent in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on order that the Revolving Credit Loans being prepaid and any costs incurred are held by any Lender the Lenders (including Additional Lenders) ratably in accordance with Section 2.21. the increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly).
(e) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencethis Section 2.08.
(hf) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.08 shall supersede any provisions in Sections 2.18 Section 2.14, 2.15 or 10.01 11.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Leslie's, Inc.)
Incremental Credit Extensions. (a) The Company may at (i) At any time or and from time to time after the Closing Second Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or to effect one or more additional revolving credit facility tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Revolving Loans” ”) or (y) one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Commitment Increase”; together with the Incremental Revolving Loans, “Incremental Revolving Credit Commitment” and the Facilities”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Revolving Facility Amendment, (including, in the case of any Incremental Term Loan, after giving effect thereto), A) no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or shall result therefrom, (iiB) the aggregate principal amount of Incremental Term Loans and all Incremental Revolving Credit Commitments 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 amount such that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Senior Secured Net Leverage Ratio on a Pro Forma Basis (treating the proposed Incremental Cap Amount, (iii) Revolving Facilities as fully drawn and excluding from the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as calculation of Consolidated Net Debt the cash proceeds from the borrowing of the effective date of such Incremental Term Loan or proposed Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred Facilities) would not exceed 3.75 to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that1.00, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended recent Test Period; , (viC) the Borrower shall deliver to be in compliance on a Pro Forma Basis with the Administrative Agent Financial Performance Covenant as of the end of the most recent Test Period, (aD) the Borrower shall have delivered a certificate of each Loan Party dated as a Financial Officer to the effect set forth in clauses (A), (B) and (C) above, including reasonably detailed calculations demonstrating compliance with clauses (B) and (C) above, (E) in the case of a Revolving Commitment Increase, the maturity date of such increase signed by an authorized officer of Revolving Commitment Increase shall be the Revolving Maturity Date, such Loan Party certifying and attaching resolutions adopted by the board of directors Revolving Commitment Increase shall require no scheduled amortization or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel mandatory commitment reduction prior to the Loan Parties, addressed Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms (and pursuant to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (viisame documentation) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with governing the Revolving Credit Loans and the Term Loans; Commitments pursuant to this Agreement, (iiF) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date interest rate margins applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Revolving Loans shall be treated determined by the Borrower and the lenders 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 margins are equal to the interest rate margins for such Incremental Revolving Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Revolving Loans incurred pursuant to such Incremental Revolving Facility and the Revolving Loans, (x) 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 Revolving Lenders or any Additional Revolving Lenders (with OID being equated to interest based on a pro rata assumed four-year life to maturity) shall be included, (y) customary arrangement or less than pro rata basis commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any mandatory Incremental Revolving Loans shall be excluded and voluntary prepayments of the existing Term Loans; (vz) if the Effective Yield for Incremental Revolving Loan includes an interest rate floor greater than the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then interest rate floor applicable to the Initial Term Loans and 0.50% (Revolving Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the amount of such excess being referred to herein as applicable interest margin for the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Revolving Loans shall automatically be increased by the Term Loan Yield Differentialrequired, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term in the Revolving Loans would cause an increase in the interest rate then in effect thereundereffect, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term the Revolving Loans shall be increased to the extent of by such differential between interest rate floors; increased amount and (viG) except as otherwise specified in this Section 2.24, any Incremental Revolving Facility Amendment entered into after the Second Amendment Effective Date shall be on the terms and conditions pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders with the applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions Revolving Facilities; provided that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms and documentation are not consistent with this Agreement (taken as a whole) are more favorable except to the lenders providing such Incremental Term Loans than those applicable extent permitted by clause (F) above), they shall be reasonably satisfactory to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments ; provided, further, that no Issuing Bank or Swingline Lender shall be on the same terms and conditions required to act as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of “issuing bank” or “swingline lender” under any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsFacility without its written consent. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this the sum of (x) the aggregate principal amount of all Incremental Revolving Facilities incurred after the Second Amendment Effective Date, (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 2.24 6.01(a)(xxiii) shall supersede any provisions not exceed the Incremental Cap. Each Incremental Revolving Facility shall be in Sections 2.18 or 10.01 to a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof unless such amount represents all the contrary and remaining availability under the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions aggregate principal amount of any Incremental AmendmentRevolving Facilities set forth above.
Appears in 1 contract
Samples: Credit Agreement (Endurance International Group Holdings, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (a “Term Loan Increase”) or, a separate class of Term Loans (collectively with any Term Loan Increase, the “New Term Commitments”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” and, together with any New Term Commitments, the “New Commitments”); provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below (includingor, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Incremental Commitment in respect of New Term Loan, after giving effect theretoLoans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or in connection with any Limited Condition Transaction the First Amendment Transactions, no Event of Default under Article 8(a) or Article 8(f)Specified Default) shall have occurred exist and be continuing, (ii) both immediately before and immediately after the aggregate principal amount effectiveness of any Incremental Term Loans and Incremental Revolving Credit Commitments that Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 7.02(y)4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or Permitted Acquisition, if the Lenders party to such Incremental Amendment consent, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as . Each tranche of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental New Term Loans or Incremental New Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount C$15,000,000 or US$15,000,000, as applicable (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Revolving Credit Commitment (assuming a full drawing Amount at the time of incurrence or issuance thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and .
(b) customary opinions The terms and provisions of legal counsel to New Term Commitments (and the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as in respect of the effective date foregoing), of such increase and (vii) there any Class shall be not more than two separate tranches of Revolving Credit Commitments as agreed between the Borrower and Incremental Revolving Credit Commitments in effect at any timethe lenders providing such New Term Commitments; provided, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.that:
(i) The Incremental such New Term Loans Commitments shall (x) rank pari passu in right of payment and of security with the Revolving Credit Initial Term Loans made on the Closing Date and the 2018 Incremental Term Loans and the Term Loans; (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) the Incremental (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) not mature earlier than the Latest Maturity Date as in effect as of the applicable to any Term Loan then outstanding; Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) the Incremental New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a weighted average life Weighted Average Life to maturity shorter Maturity of no less than the weighted average life Weighted Average Life to maturity Maturity as then in effect for any Class of Term Loans outstanding as of the existing Term Loans; applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to any such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans and the 2018 Incremental Term Loans of the same currency made on the Closing Date (exclusive of any Initial Term Loans made after the Closing Date) at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and the 2018 Incremental Term Loans of such same currency (including any Initial Term Loans of such currency made after the Closing Date) shall be treated increased to the extent necessary so that the All-In Yield of such Initial Term Loans made on the Closing Date (exclusive of any such Initialor 2018 Incremental Term Loans made after the Closing Date) is equal to the All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or 2018 Incremental Term Loan due to the application or imposition of a Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or 2018 Incremental Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or 2018 Incremental Term Loan or (z) any combination of (x) and (y) above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, less than pro rata basis or less greater than pro rata basis in any mandatory and voluntary repayments or prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental principal of Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans hereunder and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the interest rate margin) applicable to case of a prepayment of such Initial New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(vii) [reserved],the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be increased deemed to be reasonably satisfactory to the extent of such differential between interest Administrative Agent), and (2) pricing, fees, rate floors; , premiums, optional payment and redemption terms (visubject to the preceding clauses (i) except as otherwise specified in this Section 2.24through (viii)), the terms and conditions applicable to Incremental such New Revolving Commitments, New Term Commitments and New Term Loans shall may be on substantially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent (x) such terms (taken differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as a whole) applicable, and are more favorable reasonably acceptable to the lenders providing Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Incremental Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans than those applicable to being increased, as existing on the existing respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Loans, are added Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Lenders of the existing Term Commitments (and any Term Loans made pursuant to an amendment to thereto).; provided, further, that the terms of any New Revolving Commitment may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, is amended to the extent include such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added financial maintenance covenant or related equity cure for the benefit of each Facility (provided, further, however, that, if the Lenders applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such New Revolving Commitment or covenant only applicable to, or for the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.benefit of, such New Revolving
(dc) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Revolving Credit CommitmentsAmount Date”). Incremental New Term Loans may be made, and Incremental or New Revolving Credit Commitments may be provided, made by any existing Lender (but no existing Lender (including the Administrative Agent in its capacity as an existing Lender) shall have any obligation to make a portion of any New Term Loan or New Revolving Commitments) or by any Additional Lender, ; provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheldconditioned, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such Incremental New Revolving Credit Commitments if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (ei) The Incremental (as applicable) shall be met, assuming that the making or provision of such New Term Loan Loans or New Revolving Commitments and Incremental is an assignment of such New Term Loans or New Revolving Credit Commitments to such Person. Commitments in respect of New Term Loans or New Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14 and, in the case of any Incremental Amendment with respect to New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of the type being provided pursuant to the New Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) 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 as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in Section 2.24(aeach case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Term Commitment are provided with the benefit of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeapplicable Loan Documents. The Borrowers may Borrower shall use the proceeds (if any) of the Incremental New Term Loans and Incremental or New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any Incremental New Term Loans or Incremental New Revolving Credit Commitments, Commitments unless it affirmatively agrees in its sole discretionso agrees.
(gd) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence[reserved].
(he) Notwithstanding anything to the contrary in Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement, this . This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Second Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-3 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 Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the 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 an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Second Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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; provided further that no Incremental Facility may be secured by any Collateral (vor assets that would constitute Collateral if the Obligations were secured by such assets) if an at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the Second Restatement Effective Date) shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) 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 the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (C) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(he) Notwithstanding anything to Effective on the contrary in this Agreementdate of each Incremental Revolving Credit Facility the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to if any, agreed upon by Administrative Agent, the contrary L/C Issuer and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentBorrower.
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches Classes of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to below (includingan “Incremental Effective Date”), in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche exist. Each Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 25,000,000 (provided that, in each case, that such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause the next sentence). Notwithstanding anything to the contrary herein, (iix) above or the aggregate amount of Revolving Credit Commitments after giving effect to any Revolving Commitment Increase (and any concurrent reduction in the Revolving Credit Commitments) shall not exceed the Revolving Credit Commitment Cap and (y) if otherwise agreed to by except in the Administrative Agentcase of Refinancing Incremental Term Loans, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent on a certificate demonstrating in reasonable detail that Pro Forma Basis and after giving effect to the incurrence borrowing of all such Incremental Term Loans and Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Senior Secured Leverage Ratio (excluding from the calculation thereof for this purpose the cash proceeds of the aggregate amount of Incremental Term Loans that are the subject of such Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Revolving Credit Commitment (assuming a full drawing thereofEffective Date) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of for the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Period shall be not more less than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms or equal to the Initial Revolving Credit Commitments.
(i) 3.75 to 1.0. 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; (ii) the Incremental then existing Term Loans (including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Latest Maturity Date applicable with respect to any then outstanding Term Loan then outstanding; Loans, (iiic) the Incremental Term Loans shall not have a weighted average life Weighted Average Life to maturity shorter Maturity that is less than the weighted average life remaining Weighted Average Life to maturity Maturity of the existing Term Loans; (iv) the Incremental Class of Term Loans with the longest Weighted Average Life to Maturity and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the other then outstanding Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be on substantially determined by the same terms Borrower and conditions the lenders thereof, subject to the limitation set forth in clause (taken as a wholec) as above, provided further, that in the existing event that the All-In Yield of any Incremental Term Loans, other than (x) maturity dateRefinancing Incremental Term Loans, pricingis more than 50 basis points greater than the All-In Yield of the Term B-2 Loans, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after then the Latest Maturity Date of any existing Applicable Rates for the Term Loans or, shall be increased to the extent such terms (taken as a whole) are more favorable to necessary so that the lenders providing All-In Yield for such Incremental Term Loans is no more than those applicable to 50 basis points greater than the existing Term Loans, are added All-In Yield for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) B-2 Loans. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution approved by the Borrower (any such other bank or other financial institution being called an “Additional Lender”), provided that each L/C Issuer (in the case of a Revolving Commitment Increase) and the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriateexecuted by Holdings, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a Revolving Commitment Increase) and the Administrative Agent.
(f) Any Incremental . The Additional Credit Extension 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Additional Credit Extension 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Additional Credit Extension Amendment and borrowing of the payment of any fees payable in connection therewith applicable Incremental Term Loan) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases and Letters of Credit Commitments issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, (a) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment its Pro Rata Share 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower at any time or from time to time after the Closing 2018 Refinancing Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of any Facility or the addition of a new tranche of the Revolving Credit Commitments Facility (each such increase or additional tranche, an “Incremental new Revolving Credit Commitment” and the Facility, a “Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Event of Default shall exist (or except in connection with any Limited Condition Transaction an acquisition or Investment in which case no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y8.01(a) or (f) shall exist), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental . Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases (ii) above or (y) if otherwise agreed to by other than, for the Administrative Agentavoidance of doubt, (v) if an Incremental those established in respect of Extended Revolving Credit Commitment is requestedCommitments pursuant to Section 2.16) shall not exceed, at the Borrower shall have delivered to time the Administrative Agent a certificate demonstrating in reasonable detail that respective Incremental Amendment becomes effective (and after giving pro forma effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be Indebtedness in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”connection therewith), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental $500,000,000. Any Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Commitment Increase shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, pursuant to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those same documentation applicable to the existing Revolving Credit Commitments, are added Facility (including the maturity date in respect thereof) (provided the applicable margin applicable thereto may be increased if necessary to be consistent with that for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increase); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) . Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans Revolving Commitment Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender (it being understood that no existing Lender has an obligation to provide a Revolving Commitment Increase) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan . Commitments and Incremental in respect of Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment may, without the consent of any Loan Party other than the Borrower, the Agents or the 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in 2.14, (a) if the existing increase relates to the Revolving Credit Commitments,
(i) Facility, each Lender with a Revolving Credit Commitment Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “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 assumedassumed (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 Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving 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 Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (a “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “New Term Commitments”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” and, together with any New Term Commitments, the “New Commitments”); provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below (includingor, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Incremental Commitment in respect of New Term Loan, after giving effect theretoLoans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or in connection with any Limited Condition Transaction the First Amendment Transactions, no Event of Default under Article 8(a) or Article 8(f)Specified Default) shall have occurred exist and be continuing, (ii) both immediately before and immediately after the aggregate principal amount effectiveness of any Incremental Term Loans and Incremental Revolving Credit Commitments that Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 7.02(y)4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as . Each tranche of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental New Term Loans or Incremental New Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount C$15,000,000 or US$15,000,000, as applicable (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Revolving Credit Commitment (assuming a full drawing Amount at the time of incurrence or issuance thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and .
(b) customary opinions The terms and provisions of legal counsel to New Commitments (and the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as in respect of the effective date foregoing), of such increase and (vii) there any Class shall be not more than two separate tranches of Revolving Credit Commitments as agreed between the Borrower and Incremental Revolving Credit Commitments in effect at any timethe lenders providing such New Commitments; provided, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.that:
(i) The Incremental Term Loans such New Commitments shall (x) rank pari passu in right of payment and of security with the Revolving Credit Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans and, the 2020 Refinancing Term Loans and the 2023 Refinancing Term Loans; , (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) the Incremental (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable to any Term Loan then outstanding; Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) the Incremental New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a weighted average life Weighted Average Life to maturity shorter Maturity of no less than the weighted average life Weighted Average Life to maturity Maturity as then in effect for any Class of Term Loans outstanding as of the existing Term Loans; applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans and, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall be treated increased to the extent necessary so that the All-In Yield of such Initial Term Loans or, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, due to the application or imposition of a Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (z) any combination of (x) and (y) above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, less than pro rata basis or less greater than pro rata basis in any mandatory and voluntary repayments or prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental principal of Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans hereunder and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the interest rate margin) applicable to case of a prepayment of such Initial New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(vii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be increased deemed to be reasonably satisfactory to the extent of such differential between interest Administrative Agent), and (2) pricing, fees, rate floors; , premiums, optional payment and redemption terms (visubject to the preceding clauses (i) except as otherwise specified in this Section 2.24through (viii)), the terms and conditions applicable to Incremental such New Revolving Commitments, New Term Commitments and New Term Loans shall may be on substantially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent (x) such terms (taken differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as a whole) applicable, and are more favorable reasonably acceptable to the lenders providing Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Incremental Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans than those applicable to being increased, as existing on the existing respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Loans, are added Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Lenders of the existing Term Commitments (and any Term Loans made pursuant to an amendment to thereto); provided, further, that the terms of any New Revolving Commitment may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement executed by is amended to include such financial maintenance covenant or related equity cure for the Company 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 New Revolving Commitment or covenant only applicable to, or for the benefit of, such New Revolving Commitment, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each New Revolving Commitment hereunder (and not for the Administrative Agentbenefit of any other Facility hereunder)).
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Revolving Credit CommitmentsAmount Date”). Incremental New Term Loans may be made, and Incremental or New Revolving Credit Commitments may be provided, made by any existing Lender (but no existing Lender (including the Administrative Agent in its capacity as an existing Lender) shall have any obligation to make a portion of any New Term Loan or New Revolving Commitments) or by any Additional Lender, ; provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheldconditioned, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such Incremental New Revolving Credit Commitments if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (ei) The Incremental (as applicable) shall be met, assuming that the making or provision of such New Term Loan Loans or New Revolving Commitments and Incremental is an assignment of such New Term Loans or New Revolving Credit Commitments to such Person. Commitments in respect of New Term Loans or New Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14 and, in the case of any Incremental Amendment with respect to New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of the type being provided pursuant to the New Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) 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 as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in Section 2.24(aeach case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeapplicable Loan Documents. The Borrowers may Borrower shall use the proceeds (if any) of the Incremental New Term Loans and Incremental or New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any Incremental New Term Loans or Incremental New Revolving Credit Commitments, Commitments unless it affirmatively agrees in its sole discretionso agrees.
(gd) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence[reserved].
(he) Notwithstanding anything to the contrary in Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement, this . This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Finance may at any time or from time to time on one or more occasions after the Closing Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche additional Classes of term loans (each a “Incremental Term Loans or Facility”) and/or (ii) one or more additional tranches term loans of the same Class of any existing Class of term loan commitments loans (the each a “Incremental Term Loan Commitments” Increase”), and the loans made thereunderCo-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the “Incremental Term Loans” ) or Administrative Agent request (yi) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Class (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase”) and/or (ii) 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 Credit Loans made pursuant theretoCommitment Increases, the “Incremental Revolving Credit LoansFacilities”), ; provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effected, (includingx) no Event of Default (or, in the case of the incurrence or provision of any Incremental Term Loan, after giving effect thereto), no Event of Default (or Facility in connection with any a Limited Condition Transaction Transaction, no Specified Event of Default under Article 8(a) or Article 8(f)Default) shall have occurred and be continuing, continuing and (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iiiy) the representations and warranties set forth in Article 4 the Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective such date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Companyprovided that, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transactioneach case, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent that such representations and warranties are specifically made as of a particular refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects (except that respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified by materiality as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects) respect as of such date); (iv) each tranche . Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(i) The Incremental Term Loans Facilities (A) shall (1) rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Initial Term Loans; , (ii2) if secured, be secured only by the Incremental Term Loans Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Latest Initial Term Maturity Date applicable to any Term Loan then outstanding; Date, (iiiC) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing 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) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; (iv) the provided that, for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans shall be treated and is secured by the Collateral on a pro rata or less pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Initial Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of by more than 0.50% per annum, the Effective Yield then applicable to for the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such differential between interest rate floors; and Incremental Term Facility minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” applicable to Incremental the outstanding Initial Term Loans shall be on substantially increased to an amount not to exceed the same terms and conditions (taken as a whole) as “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the existing Applicable Rate applicable to such Initial Term Loans, other than (x) maturity date, pricingLoans then outstanding), (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionE) and amortization, (y) immaterial terms and (z) terms and conditions shall not have the benefit of mandatory prepayment provisions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the applicable lenders providing such Incremental or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than those applicable to a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the existing Initial Term Loans), are added for the benefit of unless (1) the Lenders of the existing Initial Term Loans pursuant to an amendment to this Agreement executed by also receive the Company benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Administrative AgentAdditional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(cii) The Incremental Revolving Credit Commitments consisting Term Increases shall be treated the same as the Class of an additional tranche Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of revolving loans the Class of Term Loans being increased and commitments shall be on the same terms and conditions as applicable to the Initial Revolving Credit Commitments Class of Term Loans being increased (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, excluding upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentcustomary arranger fees); provided that no (i) if required to consummate the applicable Incremental Term Increase, 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 Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Credit Commitment Increases shall have a final be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, 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 Additional 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 (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the then existing Latest Initial Revolving Maturity Date with and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial 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) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect to of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 Incremental Facilities shall set forth the requested amount become Commitments and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or CommitmentsLoans, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyHoldings, each Lender agreeing to provide such Commitment, if anyCo-Borrower, each Additional Lender, if any, Lender and the Administrative Agent.
(f) . Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-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 and Swingline Loans under the Initial 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. An Incremental Facility may be provided, subject to the prior written consent of each Co-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 Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Companyeach Co-Borrower, to effect the provisions of this SectionSection 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 relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement 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 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 delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Borrowers may Each Co-Borrower will use the proceeds of the Incremental Term Loans and Loans, Incremental Term Increases, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrowers may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan loans (the commitments (thereof, the “Incremental Term Loan Commitments” and Commitment”, the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each and a Lender making such increase or additional trancheloans, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansTerm Lender”), ; provided that that:
(i) both The aggregate amount of Incremental Term Loans incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount, and the proceeds of any Incremental Term Loans shall be used solely by the Borrowers and its Subsidiaries to finance Permitted Acquisitions otherwise permitted under this Agreement;
(ii) Each of the Borrowers will be co-obligors in respect of the Incremental Term Loans hereunder and each of the other Credit Parties will be Obligors in respect of all Incremental Term Loans hereunder on the same terms as all other Term A Loans hereunder;
(iii) Both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and, at the case of time that any such Incremental Term LoanLoan is made, (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); exist;
(iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu in right of security with the Revolving Credit other Loans hereunder, and the Term Loans; (ii) shall be, except as set forth in clauses (v) through (ix) below, be identical in all respects to the Incremental Term A Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; issued hereunder and be deemed Loans issued hereunder;
(iiiv) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the The Incremental Term Loans shall be treated mature and be subject to mandatory amortization as to principal on a pro rata or less than pro rata basis in any mandatory such terms as the Borrowers and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for persons to who the Incremental Term Loans are issued may, as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunderbetween themselves, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental Amendment may, without the consent of any other Lendersparties hereto, effect such amendments to this Agreement and determine at the other Loan Documents as may be necessary or appropriate, in the reasonable opinion time of the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds issuance of the Incremental Term Loans determine, provided that no such Incremental Term Loans (x) have a final maturity earlier than the Stated Maturity Date for the Term A Loans or (B) have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of Term A Loans at the time of the issuance of the Incremental term Loans (except by virtue of prepayment of the Loans prior to such date of determination);
(vi) Subject to clause (v) above, final maturity and the amortization schedule applicable to any such Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender Term Loans shall be obligated determined by the Borrowers and the applicable Incremental Term Lenders providing such Incremental Term Loans;
(vii) The All-In Yield applicable to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To issued hereunder shall be determined at the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion time of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 issuance of such Incremental Revolving Credit Commitment be prepaid from Term Loans as between the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent Borrowers and the Incremental Term 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.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.providing such
Appears in 1 contract
Samples: Second Lien Credit Agreement (Standard Register Co)
Incremental Credit Extensions. (a) The Company Borrowers may at any time or from time to time after the Closing Date, by notice by the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default under Section 8.01(a) or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental exist. Each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount a Dollar Amount of $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as aggregate amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) exceed $100,000,000. Each notice from the Company Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan . Commitments and Incremental in respect of Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment may, without the consent of any other LendersLenders or Loan Parties, 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 CompanyParent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may shall use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
2.14, (ix) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (iiy) if, on the date of such increase, there are any Revolving Credit Loans denominated in Dollars outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. In addition, if there are any Revolving Credit Loans denominated in Euro outstanding on the date of any Revolving Commitment increase, then (i) each Revolving Credit Lender with Euro Funding Capacity immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Commitment Increase Lender with Euro Funding Capacity and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit Lender’s Euro Loans such that after giving effect to all such assignments, each Revolving Credit Lender with Euro Funding Capacity (including each Revolving Commitment Increase Lender with Euro Funding Capacity) will have the percentage of Revolving Credit Loans denominated in Euro then outstanding equal to its pro rata (solely among Revolving Credit Lenders with Euro Funding Capacity) percentage of all Euro Loans then outstanding and (ii) after giving effect to the assignments described in clause (i) of this sentence, each Participating Euro Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Commitment Increase Lender that will be a Participating Euro Lender, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Participating Euro Lender’s Euro Participations such that, after giving effect all such assignments, each Participating Euro Lender (including each Revolving Commitment Increase Lender that is a Participating Euro Lender) will have the percentage of Euro Participations then outstanding equal to its pro rata (solely among Participating Euro Lenders) percentage of all Euro Participations then outstanding. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company So long as the Delayed Draw Termination Date has occurred or will occur contemporaneously with the making of any Incremental Term Loans contemplated hereby, the Borrower may at any time or from time to time after the Closing Dateon one or more occasions, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders)Agent, request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches Classes of term loan commitments loans hereunder or additional term loans of the same Class of any existing Class of term loans hereunder (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”); provided that, provided that (i) both subject to Section 1.06, at the time of that any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, Loan is made or effected (and also immediately after giving effect thereto), (A) (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or y) in connection with any the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition Transaction in which an LCT Election has been made, no Event of Default under Article 8(aSection 7.01(a), (b), (h) or Article 8(f)(i) shall have occurred and be continuing, (ii) continuing at the aggregate principal amount of time that any such Incremental Term Loans Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Revolving Credit Commitments that Term Loan the proceeds of which shall be incurred or that shall become effective shall not exceedused to fund a Limited Condition Transaction in which an LCT Election has been made, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) each of the representations and warranties made by any Loan Party set forth in Article 4 III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the effective date of the effectiveness of any Incremental Amendment with the same effect as though made on and as of such Incremental Term Loan or Incremental Revolving Credit Commitment (ordate, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct or in all respects, as the case may be) as of such earlier date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Term Loan shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that, in each case, that such amount may be less than such amount either of the foregoing amounts if (x) either such amount represents all the remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate principal amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and permitted to be incurred pursuant to this paragraph (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsa).
(ib) The Incremental Term Loans (i) shall rank pari passu equal in right of payment and of security with the Revolving Credit Loans and the Term Loans; , shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (ii) the Incremental Term Loans shall not mature earlier than the Latest Term Maturity Date applicable to any Term Loan then outstanding; Date, (iii) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining Term Loans; , (iv) shall have a maturity date (subject to the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory preceding clause (ii)), and voluntary prepayments of the existing Term Loans; interest rates (v) if the Effective Yield 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 of determined by the date of incurrence of such Borrower and the Additional Lenders thereunder; provided that, in the event that the Effective Yield for any Incremental Term Loans exceeds the sum of is greater than the Effective Yield then applicable to for the Initial Term Loans and by more than 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)per annum, then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to for the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such 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 the Incremental Term Loans 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 Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (v) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Lenders of such differential between interest rate floorsIncremental Term Loans elect to receive a lesser share of any such prepayment); and (vi) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except as otherwise specified in this Section 2.24with respect to matters contemplated by clauses (iv) and (v) above, the terms and conditions applicable to of any such Incremental Term Loans shall not be on substantially materially more restrictive to Holdings, the same terms Borrower and conditions (its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than the terms of the Initial Term Loans unless (1) as such term is also added for the benefit of any corresponding existing Term Loans, other than (x) maturity date, pricingLoans without the consent of the Administrative Agent or any Lender being required, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection2) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable any such provisions apply after the Latest Maturity Date at the time of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing incurrence of such Incremental Term Loans than those applicable Loan or (3) such terms shall be reasonably satisfactory to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentRequired Lenders.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Loans.
(d) Commitments in respect of Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. An Incremental Term Loan may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that each existing Lender shall have the right, but not the obligation, to participate in any Incremental Term Loan or, unless it agrees, to be obligated to provide any Term Loans pursuant thereto) Any or by any Additional Lender. Incremental Term Loans shall be “Term Loans” for all purposes of this Agreement and the other Loan Documents. The Incremental Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20. The effectiveness of any Incremental Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Term Loan) pursuant to such Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the extent applicable). The Borrowers may Borrower will use the proceeds of the Incremental Term Loans to finance Permitted Acquisitions and Incremental Revolving Credit Commitments for to pay any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any fees, costs and expenses incurred in connection therewith.
(e) Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees may be provided by any existing Lender (in its sole discretion), or, subject to the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans or Commitments, as applicable, to an Additional Lender.
(f) Each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(g) To The Lenders hereby irrevocably authorize the extent that Administrative Agent and the Collateral Agent to enter into (i) any Incremental Revolving Credit Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Term Loans or Commitments requested pursuant to this Section 2.24 consist 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of increases in this Section 2.20 (which amendment shall be entered into by the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion Administrative Agent upon the reasonable request of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, Borrower and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, at the percentage direction of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment LenderRequired Lenders) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on such technical amendments as may be necessary or appropriate in the date reasonable opinion 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that Borrower in connection with the minimum borrowingestablishment of such new Classes or sub-Classes, pro rata borrowing and pro rata payment requirements contained elsewhere in each case on terms consistent with this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceSection 2.20.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Commitment Increase”) from Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any such Revolving Commitment Increase and assuming that such Revolving Commitment Increase is fully drawn) with the effectiveness Financial Performance Covenant as of the last day of the most recently ended Test Period (with any proceeds of any Incremental Amendment referred Revolving Increase and any Cure Amounts to below (including, in be excluded for purposes of the case cash component of any Incremental Term Loan, after giving effect theretothe Total Net Leverage Ratio), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(aC) or Article 8(f)) the Borrower shall have occurred delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) such Revolving Commitment Increase shall be continuingon the same terms (other than any upfront fees) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, (A) the sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of Incremental all Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective Commitment Increases shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), exceed the Incremental Cap Amountand (B) no more than four such Revolving Commitment Increases and Term Commitment Increases, (iii) taken together, may be made during the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as term of the effective date of such Incremental Term Loan or Incremental this Agreement. Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 provided thatand integral multiples of $5,000,000 in excess thereof.
(b) At any time and from time to time after the Closing Date, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under subject to the limit terms and conditions set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedherein, the Borrower shall have delivered may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a certificate demonstrating in reasonable detail “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Incremental Term Lenders; provided that after giving effect to at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment and the incurrence of any such Incremental Revolving Credit Commitment Term Loans, (assuming a full drawing thereofA) and the use of proceeds thereof conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis the Company would be in compliance (before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase) with the Financial Covenants recomputed Performance Covenant as of the end last day of the most recently ended Test Period; Period (viwith any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio), (C) the Borrower shall deliver to the Administrative Agent (a) have delivered a certificate of each Loan Party dated as of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term 81 Blue Bird Body Company Credit Agreement loans incurred pursuant to such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increase shall not mature be earlier than the Latest Maturity Date applicable then in effect and the Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Loan then outstanding; Commitment Increase shall be no shorter than the Weighted Average Life to Maturity of the Term Loans, (iiiE) the interest rate margins and, subject to clause (D), the amortization schedule for any term loans incurred pursuant to such Term Commitment Increase shall be determined by the Borrower and the Incremental Term Loans shall not have a weighted average life to maturity shorter than Lenders with the weighted average life to maturity applicable Term Commitment Increases; provided that in the event that the All-In Yield of any Term Commitment Increase effected exceeds the All-In Yield of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less by more than pro rata 50 basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)points, then the Applicable Margin then in effect Rate for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such differential between term loans incurred pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that to the extent the All-In Yield with respect to such Term Commitment Increase is greater than such All-In Yield with respect to the existing Term Loans solely as a result of a higher interest rate floors; and (vi) except as otherwise specified in this Section 2.24floor, then the terms and conditions applicable increase to Incremental Term Loans the Applicable Rate shall be effected solely by increasing the interest rate floor on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than and (xF) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial any Incremental Term Facility Amendment shall be on the terms and (z) terms pursuant to documentation to be determined by the Borrower and conditions the Incremental Term Lenders with the applicable Term Commitment Increases; provided that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms and documentation are not consistent with this Agreement (taken as a whole) are more favorable except to the lenders providing such Incremental Term Loans than those applicable extent permitted by clauses (D) or (E) above), they shall be reasonably satisfactory to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. Notwithstanding anything to contrary herein, (A) the sum of (i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases shall not exceed the Incremental Cap and (B) no more than four such Term Commitment Increases and Revolving Commitment Increases, taken together, may be made during the term of this Agreement. Each Term Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $5,000,000 in excess thereof.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitment Increase or Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(eii) The Incremental Term Loan Commitments and Incremental in respect of any Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental any Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Revolving Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Incremental Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Revolving Commitment Increase) Any or by any Incremental Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Effective Date”) of each of the conditions set forth in Section 2.24(a4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Effective Date) and, to the extent reasonably requested by the 82 Blue Bird Body Company Credit Agreement Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, each applicable Incremental Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), of the payment of by any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Incremental Term Loans Lender. An Incremental Term 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 reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit CommitmentsTerm Facility Amendment shall be subject to the satisfaction on the date thereof (each, unless an “Incremental Term Facility Effective Date”) of each of the conditions set forth in Section 4.02 (it affirmatively agrees being understood that all references to “the date of such Borrowing” in its sole discretionSection 4.02 shall be deemed to refer to the Incremental Term Facility Effective Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(gd) To the extent that the Incremental Upon each Revolving Credit Commitments requested Commitment Increase pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental such Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment 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 such Revolving Commitment Increase and 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 with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the percentage date of such Revolving Commitment Increase that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the aggregate then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving 83 Blue Bird Body Company Credit Commitments Agreement effect thereto, all Revolving Loans that are Eurodollar Loans are held by the Revolving Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of all Lenders with Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, Loans outstanding on the date of such increase, there are any Revolving Credit Loans outstandingCommitment Increase, such Revolving Credit Loans shall either be prepaid by the Borrower on such date or prior refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make ABR Revolving Loans to the effectiveness Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Credit Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be prepaid from applied to the proceeds prepayment of additional outstanding ABR Revolving Credit Loans made hereunder (reflecting held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Commitment, in such increase amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Credit Commitments)Commitment Increase, which prepayment shall be accompanied by the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything Upon each Term Commitment Increase pursuant to this Section, each Incremental Term Lender shall make an additional term loan to the contrary Borrower in this Agreement, this a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Term Commitment Increase and Revolving Commitment Increase and shall make available to the Lenders a copy of any each Incremental Term Facility Amendment and Incremental Revolving Facility Amendment.
(f) This Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-2 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 Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-2 Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments Term Facilities (other than Incremental Term A Facilities) incurred prior to finance a Limited Condition Transaction, on the date on which 18 months after the definitive agreement for Restatement Effective Date that are secured pari passu in right of payment and with respect to security with any then existing Term B Loans (the “Relevant Existing Facility”), such acquisition or investment is entered into) (except interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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,
(vK) if an no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) 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 the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (C) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(he) Notwithstanding anything to Effective on the contrary in this Agreementdate of each Incremental Revolving Credit Facility the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to if any, agreed upon by Administrative Agent, the contrary L/C Issuer and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentBorrower.
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Effective Date, by upon not less than five Business Days’ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders)) and subject to the terms and conditions set forth herein, request (x) one or more increases in any existing tranche of Term Loans or that one or more additional tranches of term loan commitments Term Loans (the “Incremental Term Loan Loans”) or an increase in the then existing Revolving Commitments (the “Incremental Revolving Commitments” and ”; together with the loans made thereunderIncremental Term Loans, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Facilities”, with Revolving Credit Loans made pursuant to any Incremental Revolving Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranchebeing, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”)) be made available to the Borrower, provided that (i) both at the time of any such request that, immediately before and after giving effect to the effectiveness incurrence of any such Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingFacilities, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iiii) the representations and warranties contained in Article 4 III and the other Loan Documents are true and correct in all material respects; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects (except as of such earlier date; provided, further, that any representation and warranty that is qualified by materiality as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of any qualification therein) in all respects on such Incremental Revolving Credit Commitment respective dates, (assuming a full drawing thereofii) no Default shall have occurred and the use of proceeds thereof be continuing or after giving effect thereto would result therefrom, (iii) on a Pro Forma Basis after giving effect to any such Incremental Facilities (and, without duplication, assuming that all Incremental Revolving Commitments have been fully utilized but excluding the Company would proceeds of any Incremental Loan) and after giving effect to any Specified Transaction consummated in connection therewith, the Borrower and its Subsidiaries shall be in compliance with the Financial Covenants recomputed covenants set forth in Sections 6.11 and 6.12 as of the end last day of the most recently ended Test Period; (vi) the Borrower shall deliver . Notwithstanding anything to the Administrative Agent contrary herein, (aA) no Incremental Facility shall be incurred or issued (or committed to be incurred or issued) anytime that the Net Senior Secured Leverage Ratio determined on a certificate of each Loan Party dated Pro Forma Basis in the same manner as provided in clause (iii) above is greater than 3.75:1.00, (B) that the aggregate principal amount of the date Incremental Facilities shall not exceed (A) $35,000,000 for all outstanding Incremental Facilities at the time of such increase signed by an authorized officer incurrence of such Loan Party certifying and attaching resolutions adopted by any Incremental Facility so long as the board of directors or equivalent governing body of such Loan Party approving such increase Net Senior Secured Leverage Ratio determined on a Pro Forma Basis in the same manner as provided in clause (iii) above is not greater than 3.75:1.00 and (bC) customary opinions $75,000,000 for all outstanding Incremental Facilities at the time of legal counsel to incurrence of any Incremental Facility so long as the Loan Parties, addressed to Net Senior Secured Leverage Ratio determined on a Pro Forma Basis in the Administrative Agent and each lender under same manner as provided in clause (iii) above is not greater than 3.00:1.00 (the “Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Availability”). The Incremental Term Loans Facilities shall rank pari passu in right of payment and of security with the existing Obligations.
(b) 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, 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. Any Incremental Revolving Credit Commitments and Incremental Revolving Loans and shall (i) mature on the Term Loans; Revolving Maturity Date applicable to the existing Revolving Loan, (ii) require no scheduled amortization or mandatory Commitment reduction prior to the Revolving Maturity Date and (iii) be subject to the same terms and conditions as the Revolving Commitments and shall be treated substantially the same as, and made under the same documentation as, the existing Revolving Commitments. Any Incremental Term Loans shall not mature be on terms (including regarding interest rates and amortization schedules) and pursuant to documentation to be determined among the Borrower and the lenders in respect of such Incremental Term Loans, provided, however, that (1) the maturity date of such Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit (2) as of the Lenders date of the incurrence of such Incremental Term Loan, the Weighted Average Life to Maturity of the Incremental Term Loan shall not be shorter than the longest remaining Weighted Average Life to Maturity of the existing Term Loans, (3) in the event that the All-In Yield applicable to such Incremental Term Loan exceeds the All-In Yield of the Term Loans pursuant existing at such time by more than 0.50% then, the interest rate margins for the Term Loans existing at such time shall be increased to an amendment the extent necessary so that the All-In Yield of such Term Loans is equal to the All-In Yield of the applicable Incremental Term Loans minus 0.50% and (4) if the terms, conditions and documentation in respect of such Incremental Term Loans are not consistent with this Agreement executed (other than to the extent permitted by this sentence and the Company second preceding sentence), such terms, conditions and documentation shall be reasonably satisfactory to the Administrative Agent. Any Incremental Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.21 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing Lender or by any Additional Lenderother bank or other financial institution reasonably acceptable to (i) the Borrower, provided that (ii) if the consent of the Administrative Agent andwould be required for an assignment to such Additional Lender under Section 9.04, the Administrative Agent and (iii) solely with respect to the Incremental Revolving Credit Commitments, each Issuing Bank and Swingline Lender shall have consented (any such consent not to be unreasonably withheld, delayed other bank or conditioned) to such Lender’s or other financial institution being called an “Additional Lender’s making such ”). Commitments in respect of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and, to the extent such Incremental Amendment will affect the rights, obligations and duties of the Administrative Agent.
(f) Any , 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan or an Incremental Revolving Commitment, the borrowing under) any Incremental Amendment shall not be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 2.24(a)4.02, of but only the payment of any fees payable in connection therewith conditions to this Section 2.21 and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated agree and, to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that reasonably requested by the Incremental Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01. Upon each increase in the Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.21, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a each, an “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment 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 (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Lenders with Revolving Credit Commitments represented by such Revolving Lender’s Revolving Credit Commitment and Commitment.
(iid) 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 Credit Commitment be prepaid from The Borrower will use the proceeds of additional the Incremental Term Loans and Incremental Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment Commitments for any purpose not prohibited by this Agreement. No Lender shall be accompanied by accrued interest on the obligated to provide any Incremental Term Loans or Incremental Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceCommitments unless it so agrees.
(he) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.21 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Lmi Aerospace Inc)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Second Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the latest final maturity date of any Class of Term A Loans 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 latest final maturity date of any Class of Term B Loans then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of any Class of Term A Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of any Class of Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Second Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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; provided further that no Incremental Facility may be secured by any Collateral (vor assets that would constitute Collateral if the Obligations were secured by such assets) if an at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the Second Restatement Effective Date) shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (vi) the Borrower shall deliver period of four consecutive fiscal quarters for which financial statements have been or were required to the Administrative Agent be delivered pursuant to Section
6.1 (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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.; and
(hii) Notwithstanding anything with respect to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.Revolving Credit Facility, (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Credit Facility,
Appears in 1 contract
Samples: Amendment No. 4 (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company may at (i) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or to effect one or more additional revolving credit facility tranches of term loan commitments hereunder (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount an increase of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments hereunder) (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Facilities”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Revolving Facility Amendment, (including, in the case of any Incremental Term Loan, after giving effect thereto), A) no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or shall result therefrom, (iiB) the aggregate principal amount Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants recomputed as of Incremental Term Loans and the last day of the most-recently ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Credit Commitments that Facility is fully drawn), (C) the Borrower shall be incurred or that shall become effective shall not exceedhave delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with any Indebtedness incurred pursuant to Section 7.02(y)reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and if made as of the effective date 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 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period), (D) such Incremental Term Loan or Revolving Facility may be secured on a pari passu basis with the Loans, (E) the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Credit Commitment Facility shall be determined by the Borrower and the lenders thereunder, provided that no Incremental Revolving Facility shall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (orF) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities, at (G) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the option of Administrative Agent, the Company, Borrower and the Additional Revolving Lenders and (H) in the case of Incremental Term Loans an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or Incremental mandatory commitment reduction prior to the Revolving Credit Commitments incurred to finance a Limited Condition Transaction, Maturity Date and shall be on the date on which same terms governing the definitive agreement for Revolving Commitments pursuant to this Agreement; provided that to the extent such acquisition or investment is entered into) terms and documentation are not consistent with this Agreement (except to the extent such representations and warranties are specifically made as of a particular datepermitted by clause (E) or (G) above), in which case such representations and warranties they shall be true and correct in all material respects (except reasonably satisfactory to the Administrative Agent; provided, further, that any representation and warranty that is qualified by materiality no Issuing Bank shall be true and correct in all respects) required to act as of “issuing bank” under any such date); (iv) each tranche of Incremental Term Loans Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in an aggregate a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit CommitmentsCap.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ) from Additional Lenders; provided that (i) both at the time of any each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any such Commitment Increase and assuming that such Commitment Increase is fully drawn) with the effectiveness of any Incremental Amendment referred to below (includingFinancial Performance Covenants, in the each case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end last day of the most recently ended Test Period; , (viC) the Borrower shall deliver to the Administrative Agent (a) have delivered a certificate of each Loan Party dated as of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) the maturity date of such increase signed by an authorized officer of Commitment Increase shall be the Maturity Date, such Loan Party certifying and attaching resolutions adopted by the board of directors Commitment Increase shall require no scheduled amortization or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel mandatory commitment reduction prior to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Commitment Increase shall be on the same terms and conditions as governing the Initial Revolving Credit Commitments (other than (x) maturity date and pricingpursuant to this Agreement. Notwithstanding anything to contrary herein, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable the aggregate principal amount of the Commitment Increases incurred after the Latest Maturity Effective Date shall not exceed the Incremental Cap. Each Commitment Increase shall be in a minimum principal amount of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit $5,000,000 and integral multiples of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent)$1,000,000 in excess thereof; provided that no such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit CommitmentsCap.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(eii) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments in respect of any Commitment Increase shall become Commitments (or in the case of an Incremental Revolving Credit any Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Commitment Increase or, unless it agrees, be obligated to provide any Commitment Increase) Any or by any Additional Lender in the Borrower’s sole discretion. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Facility Amendment shall 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 Revolving Facility Closing Date”) of each of the conditions set forth in Section 2.24(a), 4.02 (it being understood that all references to “the date of the payment of any fees payable such Borrowing” in connection therewith and such other conditions as the parties thereto Section 4.02 shall agree. The Borrowers may use the proceeds of be deemed to refer to the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited Facility Closing Date) and, to the extent reasonably requested by this Agreement. No Lender shall be obligated the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to provide any Incremental Term Loans such legal opinions resulting from a change in law, change in fact or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionchange to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(gc) To the extent that the Incremental Revolving Credit Commitments requested Upon each Commitment Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Lender providing a portion of the Incremental Revolving Credit such Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Applicable Percentage. Any Loans outstanding immediately prior to the date of such Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of such Commitment Increase, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Lenders after giving effect to the Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Commitment Increase Lender will promptly purchase (iifor cash at face value) ifassignments of portions of such outstanding Loans of other Lenders so that, after giving effect thereto, all Loans that are Eurocurrency Loans are held by the Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Loans outstanding on the date of such increase, there are any Revolving Credit Loans outstandingCommitment Increase, such Revolving Credit Loans shall either be prepaid by the Borrower on such date or prior refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Commitment Increase Lender will make ABR Loans to the effectiveness Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Incremental Revolving Credit Loans of such Type times a percentage obtained by dividing the amount of such Commitment Increase Lender’s Commitment Increase by the aggregate amount of the Commitments (after giving effect to the Commitment Increase on such date) and (ii) such funds will be prepaid from applied to the proceeds prepayment of additional Revolving Credit outstanding ABR Loans made hereunder (reflecting held by the Lenders other than the Commitment Increase Lenders, and transferred by the Administrative Agent to the Lenders other than the Commitment Increase Lenders, in such increase amounts so that, after giving effect thereto, all ABR Loans will be held by the Lenders in Revolving Credit Commitments)accordance with their then-current Applicable Percentages. On the date of such Commitment Increase, which prepayment shall be accompanied by the Borrower will pay to the Administrative Agent, for the accounts of the Lenders receiving such prepayments, accrued and unpaid interest on the Revolving Credit principal amounts of their Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.21 shall supersede any provisions in Sections 2.18 Section 2.17 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing SecondThird Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” Facility, a “Commitment Increase”) from Additional Revolving Lenders, which may, at the request of the Borrower and to the Revolving Credit Loans made pursuant theretoextent agreed by the Persons providing the same, in the “Incremental Revolving Credit Loans”), provided that cases of clause (i) both at the time of or (ii), be denominated in Dollars or any such request and after giving effect to Alternative Currency; provided that, unless otherwise provided below, upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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, dispositions or the designation of an Unrestricted Subsidiary on or following such date and prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,as set forth in Section 1.2(h),
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the latest final maturity date of any Class of Term A Loans 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 latest final maturity date of any Class of Term B Loans then in effect, (it being understood that customary bridge loans which, subject to customary conditions, would either automatically be converted into or required to be exchanged for permanent financing which otherwise complies with this clause (D), shall not violate this requirement),
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of any Class of Term A Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of any Class of Term B Loans then outstanding, (it being understood that customary bridge loans which, subject to customary conditions, would either automatically be converted into or required to be exchanged for permanent financing which otherwise complies with this clause (F) shall not violate this requirement),
(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 currency, margin, pricing and fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the SecondThird Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to currency, pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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; provided further that no Incremental Facility may be secured by any Collateral (vor assets that would constitute Collateral if the Obligations were secured by such assets) if an at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the SecondThird Restatement Effective Date) shall not exceed (i) $650.0 millionthe Dollar Equivalent of $1,000,000,000 (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.855.00:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.56.00:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or minimum principal amount of the Dollar Equivalent of $50.0 million and integral multiples of the Dollar Equivalent of $1.0 million in excess thereof; provided that such amount may be less than pro rata basis in any mandatory and voluntary prepayments the Dollar Equivalent of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and subject to any adjustments to reflect that Participating Interests and participations in Swing Loans denominated in Alternative Currencies are not allocated to Lenders holding Commitments which are only fundable in Dollars and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and subject to any adjustments to reflect that Revolving Loans outstanding, such Revolving Credit Loans shall on or prior denominated in Alternative Currencies are not allocated to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase Lenders holding Commitments which are only fundable in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans Dollars; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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.; and
(hii) Notwithstanding anything with respect to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.Revolving Credit Facility, (A) the borrowing and repayment (except for (w)
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Second Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, continuing or would exist after giving effect thereto,
(iiB) on the aggregate principal amount date of the incurrence or effectiveness of such Incremental Term Loans and Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of assuming such Incremental Term Loan or Incremental Revolving Credit Commitment (Facility has been drawn in full), or, at the option Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the Companysigning of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided 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 prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, 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, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-3 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 latest final maturity date of any Class of Term B Loans then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the 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 an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of theany Class of Term B 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 (J) below and other than any terms which are applicable only after the then-existing 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) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing Term B Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Second Restatement Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (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 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) 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 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; provided further that no Incremental Facility may be secured by any Collateral (vor assets that would constitute Collateral if the Obligations were secured by such assets) if an at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Revolving Credit Commitment Facility shall be guaranteed by any Person which is requestednot the Borrower or a Guarantor,
(L) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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),
(M) the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence 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 EBITDA and Interest Expense for the relevant period), and
(N) 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.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the Second Restatement Effective Date) shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Revolving Credit Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (assuming a full drawing thereofB) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and the use of proceeds thereof (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the Company would be case of the incurrence of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in compliance with the Financial Covenants recomputed full) and any related transaction as of the end last day of the most recently ended Test Period; (viperiod of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that unless the Borrower otherwise elects, any portion of legal counsel any Commitment Increase that 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 plus (iii) in the case of a Commitment Increase that serves to effectively extend the maturity of any Term Facility or the Revolving Facility, an amount equal to the Loan Partiesamount of the Loans and/or Commitments so extended, addressed plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the Administrative Agent and each lender under the Incremental Term portion of such Loans or Incremental Revolving Credit Commitment, as applicable, on Commitments so replaced (the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
total aggregate amount described under clauses (i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; through (iv) hereof, the “Incremental Term Loans Cap”). Each Commitment Increase shall be treated on in a pro rata or 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 pro rata basis in any mandatory and voluntary prepayments of $50.0 million if such amount represents all the existing Term Loans; (v) if remaining availability under the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate principal amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increases set forth above.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Commitment Increase.
(d) Upon the implementation of any Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender Facility or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested Increase pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,2.14:
(i) each Lender with a respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental relevant Additional Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental relevant Additional Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding Letters of Credit Swing 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 Additional Revolving Lender’s) Participating Interests and participations hereunder in Letters Swing Loans shall be held on a pro rata basis on the basis of Credit held by each Lender with a their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including each such Incremental the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Lender) will equal Increase), and such other Revolving Lenders (including the percentage of Additional Revolving Lenders providing the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s relevant Revolving Credit Commitment and (iiIncrease) ifshall 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 of such Class pro rata on the date basis of such increase, there are their Revolver Percentage (after giving effect to any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) 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 the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (C) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(he) Notwithstanding anything to Effective on the contrary in this Agreementdate of each Incremental Revolving Credit Facility the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to if any, agreed upon by Administrative Agent, the contrary L/C Issuer and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentBorrower.
Appears in 1 contract
Samples: Incremental Amendment (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches Classes of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to below (includingan “Incremental Effective Date”), in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche exist. Each Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 25,000,000 (provided that, in each case, that such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause the next sentence). Notwithstanding anything to the contrary herein, (iix) above or the aggregate amount of Revolving Credit Commitments after giving effect to any Revolving Commitment Increase (and any concurrent reduction in the Revolving Credit Commitments) shall not exceed the Revolving Credit Commitment Cap and (y) if otherwise agreed to by except in the Administrative Agentcase of Refinancing Incremental Term Loans, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent on a certificate demonstrating in reasonable detail that Pro Forma Basis and after giving effect to the incurrence borrowing of all such Incremental Term Loans and Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Senior Secured Leverage Ratio (excluding from the calculation thereof for this purpose the cash proceeds of the aggregate amount of Incremental Term Loans that are the subject of such Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Revolving Credit Commitment (assuming a full drawing thereofEffective Date) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of for the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Period shall be not more less than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms or equal to the Initial Revolving Credit Commitments.
(i) 3.75 to 1.0. 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; (ii) the Incremental then existing Term Loans (including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Latest Maturity Date applicable with respect to any then outstanding Term Loan then outstanding; Loans, (iiic) the Incremental Term Loans shall not have a weighted average life Weighted Average Life to maturity shorter Maturity that is less than the weighted average life remaining Weighted Average Life to maturity Maturity of the existing Term Loans; (iv) the Incremental Class of Term Loans with the longest Weighted Average Life to Maturity and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the other then outstanding Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be on substantially determined by the same terms Borrower and conditions the lenders thereof, subject to the limitation set forth in clause (taken as a wholec) as above, provided further, that in the existing event that the All-In Yield of any Incremental Term Loans, other than (x) maturity dateRefinancing Incremental Term Loans, pricingis more than 50 basis points greater than the All-In Yield of the Term B Loans, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after then the Latest Maturity Date of any existing Applicable Rates for the Term Loans or, shall be increased to the extent such terms (taken as a whole) are more favorable to necessary so that the lenders providing All-In Yield for such Incremental Term Loans is no more than those applicable to 50 basis points greater than the existing Term Loans, are added All-In Yield for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) B Loans. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution approved by the Borrower (any such other bank or other financial institution being called an “Additional Lender”), provided that each L/C Issuer (in the case of a Revolving Commitment Increase) and the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriateexecuted by Holdings, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a Revolving Commitment Increase) and the Administrative Agent.
(f) Any Incremental . The Additional Credit Extension 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Additional Credit Extension 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Additional Credit Extension Amendment and borrowing of the payment of any fees payable in connection therewith applicable Incremental Term Loan) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases and Letters of Credit Commitments issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, (a) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment its Pro Rata Share 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Restatement Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Revolving Facility Amendment, the terms (other than, subject to below (includingthe immediately succeeding proviso, upfront fees) of such Revolving Commitment Increase shall be identical to the terms governing the Revolving Facility; provided, further, that in the case event that the All-In Yield of any Incremental Revolving Commitment Increase exceeds the All-In Yield of the Revolving Facility and/or the Initial Term LoanLoans by more than 50 basis points, after giving effect thereto)then the interest rate margins for the Revolving Facility and/or the Initial Term Loans shall be increased or additional upfront fees shall be paid to the extent necessary so that the All-In Yield of the Revolving Facility and/or the Initial Term Loans is equal to the All-In Yield of the Revolving Commitment Increase minus 50 basis points. Notwithstanding anything to contrary herein, no Event the sum of Default (or in connection with any Limited Condition Transaction no Event i) the aggregate principal amount of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingthe Revolving Commitment Increases, (ii) the aggregate principal amount of all Incremental Term Loans Commitments incurred after the Restatement Date and (iii) the aggregate principal amount of all Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness Equivalent Debt incurred pursuant to Section 7.02(y), 6.01(xxix) after the Restatement Date shall not exceed the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Cap. Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that, in each case, that such amount may be less than such amount if (x) such amount represents all the remaining availability under the limit Incremental Cap.
(b) At any time and from time to time after the Restatement Date, subject to the terms and conditions set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedherein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver may, by notice to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to whereupon the Administrative Agent and shall promptly make such notice available to each lender under of the Lenders), request to effect one or more new commitments which may be of the same class as any outstanding Term Loans (each such increase, a “Term Commitment Increase”) or a new Class of Term Loans (collectively, with any Term Commitment Increase, the “Incremental Term Loans Commitments” and the term loans made thereunder, “Incremental Term Loans”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Credit CommitmentTerm Facility Amendment, as applicable, on (A) the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Initial Term Loans; provided, further, that if Incremental Term Loans rank junior in right of payment and/or security with the Initial Term Loans, such Incremental Term Loans (iiw) shall mature no earlier than ninety-one (91) days after the Latest Maturity Date then in effect, (x) shall be established as a separate Class of Term Loans from the Initial Term Loans, (y) shall be subject to intercreditor arrangements reasonably acceptable to the Administrative Agent, and (z) for the avoidance of doubt, shall not be subject to clause (D) below, (B) the maturity date of Incremental Term Loans shall not be earlier than the Term Maturity Date (except as otherwise provided in the preceding clause (A)) and the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans, and all other terms of such Incremental Term Loans shall be substantially identical to the terms governing the Initial Term Loans (other than pricing, amortization, maturity, participation in mandatory prepayments or ranking as to security, in each case, subject to this Section 2.20(b)) or otherwise reasonably acceptable to the Administrative Agent, (C) the Incremental Term Loans shall not mature earlier participate on a greater than pro rata basis than the Latest Maturity Date applicable Initial Term Loans with respect to any Term Loan then outstanding; mandatory prepayments of Loans, (iiiD) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; interest rate margins, OID or upfront fees (ivif any) the for any Incremental Term Loans shall be treated on a pro rata or less than pro rata basis determined by the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; provided that in the event that the All-In Yield of any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such (excluding any Incremental Term Loans that rank junior in rank of payment or security with the Initial Term Loans) exceeds the sum All-In Yield of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)by more than 50 basis points, then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to margins for the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent necessary so that the All-In Yield of such differential between interest rate floors; and the Initial Term Loans is equal to the All-In Yield of the Incremental Term Loans minus 50 basis points, (viE) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall not be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, secured by assets other than the Collateral and shall not be incurred or guaranteed by any Person that is not the Borrower or a Guarantor and (xF) maturity datethe terms of any Term Commitment Increase (other than, subject to clause (D) above, pricing, OID and upfront fees) shall be identical to the terms governing the Class of Term Loans being increased by such Term Commitment Increase. Notwithstanding anything to contrary herein, the sum of (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectioni) and amortizationthe aggregate principal amount of the Incremental Term Commitments, (yii) immaterial terms the aggregate principal amount of all Revolving Commitment Increases after the Restatement Date and (ziii) terms and conditions that are either only applicable the aggregate principal amount of all Incremental Equivalent Debt incurred pursuant to Section 6.01(xxix) after the Latest Maturity Restatement Date shall not exceed the Incremental Cap. Each Term Commitment Increase shall be in a minimum principal amount of any existing Term Loans or, to $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less if such amount represents all the extent such terms (taken as a whole) are more favorable to remaining availability under the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCap.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase or Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(eii) The Incremental Term Loan Commitments and Incremental in respect of any Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental any Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Revolving Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Additional Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) Any or by any Additional Revolving Lender. An Incremental Revolving 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 reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Restatement Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Incremental Term Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, each applicable Additional Term Lender and the Administrative Agent. Term Commitment Increases 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 any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term 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 reasonable opinion of the Administrative Agent and or the CompanyBorrower, to effect the provisions of this SectionSection 2.20. The effectiveness of any Incremental Term Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 2.24(a4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Restatement Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use ; provided that if the proceeds of the such Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited are being used to finance a Limited Condition Transaction, to the extent agreed by this Agreement. No Lender shall be obligated to provide any the lenders providing such Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees (x) the reference in its sole discretion.
Section (ga) To to the extent accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference in Section 4.02(b) to Default and Event of Default shall mean the absence of a Default or Event of Default at the time that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist main transaction agreement governing such Permitted Acquisition or similar Investment is executed and delivered and the absence of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment Specified Event of Default immediately prior to and after giving effect to the incurrence of such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Term Commitments
(d) Upon any Incremental Revolving Credit Commitment Facility Closing Date, (each a) if, on such date, there are any revolving loans under any Revolving Facility then outstanding, such revolving loans shall be prepaid from the proceeds of a “Incremental new Borrowing of Revolving Credit Commitment Lender”) Loans in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act amounts as shall be deemed to have assumed, a portion of such Lender’s participations hereunder necessary in outstanding Letters of Credit such order that, after giving effect to each such deemed assignment Borrowing and assumption all such related prepayments, all revolving credit loans under all Revolving Facilities will be held by all Lenders under the Revolving Facilities (including such Additional Revolving Lender providing such Revolving Commitment Increase ratably in accordance with their revolving credit commitments under all Revolving Facilities (after giving effect to the establishment of participations, such Revolving Commitment Increase) and (b) there shall be an automatic adjustment to the percentage of the aggregate outstanding participations hereunder in Letters of Credit and Swingline Loans held by each Lender with a under the Revolving Credit Commitment (including Facilities so that each such Incremental Lender shares ratably in such participations in accordance with their revolving credit commitments under all Revolving Credit Facilities (after giving effect to the establishment of such Revolving Commitment LenderIncrease). Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on shall not apply thereto. On the date of such increaseRevolving Commitment Increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior the Borrower will pay to the effectiveness Administrative Agent, for the accounts of the Revolving Lenders receiving such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments)prepayments, which prepayment shall be accompanied by accrued and unpaid interest on the principal amounts of their Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything Upon each Incremental Term Commitment pursuant to this Section 2.20, each Lender shall make an additional term loan to the contrary Borrower in this Agreement, this a principal amount equal to such Lender’s Incremental Term Commitment. The Incremental Term Loans made pursuant to any Term Commitment Increase shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Commitment and Revolving Commitment Increase and shall make available to the Lenders a copy of any each Incremental Term Facility Amendment and Incremental Revolving Facility Amendment.
(f) This Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Amendment No. 57 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request immediately prior to and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, the Specified Representations) shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower BorrowerCompany shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower BorrowerCompany shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term B-3 Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term B-3 Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing existingoutstanding Term B-3 Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing existingoutstanding Term B-3 Loans; (v) if the Effective Yield for the theany Incremental Term Loans LoansLoan (other than any Incremental Term Loan that (A) is obtained after the date that is 12 months after the Amendment No. 7 Effective Date and/or (B) is incurred in connection with a Permitted Acquisition or similar permitted Investment) as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term B-23 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term B-23 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term B-23 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 such Initial Term B-23 Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing existingoutstanding Term B-3 Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing existingoutstanding Term B-3 Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
; it being understood that (fi) Any Amendment No. 1 constitutes an “Incremental Amendment may, without Amendment” with respect to the consent establishment of any other Lenders, effect such amendments to this Agreement the Term B-1 Loan Commitments as “Incremental Term Commitments” and the other Loan Documents Term B-1 Loans as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any “Incremental Amendment shall be Term Loans” (subject to the satisfaction on the date thereof of each parenthetical in clause (ii) of the conditions set forth in proviso to Section 2.24(a2.24), of and (ii) Amendment No. 2 constitutes an “Incremental Amendment” with respect to the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion establishment of the Incremental Revolving Credit Commitment (each a and the Loans provided thereunder as “Incremental Revolving Credit Commitment Lender”) Loans” (subject to the parenthetical in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and clause (ii) if, on of the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior proviso to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsSection 2.24), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Third Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans or an increase in one or more existing tranches of term loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Dollar Revolving Credit Commitments and/or additional tranches of or Multicurrency Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (ix) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (or y) at the time of any request and as of the date an Incremental Term Loan is made, the Borrower would be in connection compliance with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount Section 7.1. Each tranche of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agentcontrary herein, (v) if an after the Tranche C Funding Date, the aggregate amount of the Incremental Term Loans, when added to the aggregate amount of Revolving Credit Commitment is requestedIncreases, shall not exceed $275,000,000, and the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and Increases shall not exceed $150,000,000; provided however that each of such amounts shall automatically increase on the use of proceeds thereof Non-Extending Revolving Credit Termination Date on a Pro Forma Basis dollar-for-dollar basis by the Company would be in compliance with the Financial Covenants recomputed as amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Non-Extending Dollar Revolving Credit Commitments and Incremental Non-Extending Multicurrency Revolving Credit Commitments in effect at any time, excluding Incremental that have terminated on the Non-Extending Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Termination Date. Each tranche of Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable maturity date with respect to any existing Term Loan then outstanding; Loans, and (iiic) except as set forth above, shall be treated substantially the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of same as the existing Term Loans; Loans (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loansprepayments); provided, that (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vii) except as otherwise specified provided in this Section 2.24preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agentlenders thereof.
(cb) Each series of Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Term Loans borrowed pursuant to this Section shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such a separate Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Term Loan Facility. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such ”). Incremental Term Loans or providing such Incremental shall be effected, and Revolving Credit Commitment Increases shall become Dollar Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Multicurrency Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
hereunder (e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or or, in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Dollar Revolving Credit CommitmentLender or Multicurrency Revolving Credit Lender, as applicable, an increase in such Lender’s applicable Dollar Revolving Credit Commitment or the provision of a new Incremental Multicurrency Revolving Credit CommitmentCommitments, as applicable) under this Agreement and each Additional Lender shall become a Lender hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. In addition, the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Incremental Amendment (including confirmation that the obligations of the Loan Parties with respect to an increase to the existing Dollar Revolving Loan Commitments or Multicurrency Revolving Credit Commitments, as applicable, (and any Loans or extensions of credit thereunder) or an Incremental Term Loan are secured by the Collateral and the perfection and priority of the Administrative Agent’s Lien in such Collateral has not been affected by a Revolving Credit Commitment Increase or the Incremental Term Loans as applicable). 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 2.24(a), 5.2 (it being understood that all references to “the date of such extension of credit” or similar language in such Section 5.2 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitment Increases unless it so agrees.
(c) Upon each increase in the Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested as applicable, pursuant to this Section 2.24 consist that occur either prior to the Tranche C Funding Date or at any time after the termination of increases in the existing all Non-Extending Dollar Revolving Credit Commitments or Non-Extending Multicurrency Revolving Credit Commitments,
, as the case may be, (i) each Lender with a Dollar Revolving Credit Commitment Lender or Multicurrency Revolving Credit Lender, as applicable, immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each each, a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s or Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit, Multicurrency Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Dollar Letters of Credit or Multicurrency Letters of Credit and (y) participations hereunder in Swing Line Loans held by each Lender with a Dollar Revolving Credit Commitment Lender or Multicurrency Revolving Credit Lender, as applicable (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments of all Lenders with Dollar Revolving Credit Commitments Lenders or Multicurrency Revolving Credit Commitments, as applicable, represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything From and after the Tranche C Funding Date, Revolving Credit Commitment Increases (including with respect to the contrary in Tranche C Funding Date Incremental Revolving Credit Commitments) may only be made with respect to Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments, and any adjustments or reallocations with respect thereto for so long as Non-Extending Dollar Revolving Credit Commitments or Non-Extending Multicurrency Revolving Credit Commitments, as the case may be, are outstanding, shall be governed by Section 2.26(b)(i) and (b)(ii). The terms of any Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments created pursuant to any Revolving Credit Commitment Increase shall be identical to the Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments, as the case may be, then outstanding under this Agreement, this including without limitation with respect to the Applicable Margin applicable thereto.
(e) This Section 2.24 2.25 shall supersede any provisions in Sections 2.18 or 10.01 Section 10.1 to the contrary and contrary.
(f) With respect to any Incremental Term Loans created hereunder, if the Borrower and initial yield on such Incremental Term Loans (as determined by the Administrative Agent may amend Section 2.18 solely to be equal to the extent necessary sum of (x) the margin applicable to give such Incremental Term Loans above the Eurocurrency Rate, the Euribor Base Rate or the Eurocurrency Australian Dollar Base Rate, as the case may be and (y) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower for doing so, in each case in excess of 0.50% (the amount of such discount or fee in excess of 0.50%, expressed as a percentage of such Incremental Term Loans, being referred to herein as “Upfront Fees”), the amount of such Upfront Fees divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) exceeds the Applicable Margin then in effect for Tranche C Term Loans that are Eurocurrency Loans (the amount of such excess being referred to herein as the permitted terms “Yield Differential”), then the Applicable Margin then in effect for Tranche C Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. If the lowest permissible rate applicable to such Incremental Term Loans that are Eurocurrency Loans is greater than 1.5% per annum or the Eurodollar Floor Amount, as applicable, then the difference between such lowest permissible rate and conditions 1.5% per annum or the Eurodollar Floor Amount, as applicable, shall be used in calculating the Yield Differential for purposes of any Incremental Amendmentthis clause (f).
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (a “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “New Term Commitments”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” and, together with any New Term Commitments, the “New Commitments”); provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below (includingor, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Incremental Commitment in respect of New Term Loan, after giving effect theretoLoans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or in connection with any Limited Condition Transaction the First Amendment Transactions, no Event of Default under Article 8(a) or Article 8(f)Specified Default) shall have occurred exist and be continuing, (ii) both immediately before and immediately after the aggregate principal amount effectiveness of any Incremental Term Loans and Incremental Revolving Credit Commitments that Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 7.02(y)4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as . Each tranche of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental New Term Loans or Incremental New Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount C$15,000,000 or US$15,000,000, as applicable (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Revolving Credit Commitment (assuming a full drawing Amount at the time of incurrence or issuance thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and .
(b) customary opinions The terms and provisions of legal counsel to New Commitments (and the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as in respect of the effective date foregoing), of such increase and (vii) there any Class shall be not more than two separate tranches of Revolving Credit Commitments as agreed between the Borrower and Incremental Revolving Credit Commitments in effect at any timethe lenders providing such New Commitments; provided, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.that:
(i) The Incremental Term Loans such New Commitments shall (x) rank pari passu in right of payment and of security with the Revolving Credit Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans, the 2020 Refinancing Term Loans, the 2023 Refinancing Term Loans and the 2023-A Refinancing Term Loans; , (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) the Incremental (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable to any Term Loan then outstanding; Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) the Incremental New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a weighted average life Weighted Average Life to maturity shorter Maturity of no less than the weighted average life Weighted Average Life to maturity Maturity as then in effect for any Class of Term Loans outstanding as of the existing Term Loans; applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall be treated increased to the extent necessary so that the All-In Yield of such Initial Term Loans, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, due to the application or imposition of a Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (z) any combination of (x) and (y) above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, less than pro rata basis or less greater than pro rata basis in any mandatory and voluntary repayments or prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental principal of Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans hereunder and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the interest rate margin) applicable to case of a prepayment of such Initial New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(vii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be increased deemed to be reasonably satisfactory to the extent of such differential between interest Administrative Agent), and (2) pricing, fees, rate floors; , premiums, optional payment and redemption terms (visubject to the preceding clauses (i) except as otherwise specified in this Section 2.24through (viii)), the terms and conditions applicable to Incremental such New Revolving Commitments, New Term Commitments and New Term Loans shall may be on substantially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent (x) such terms (taken differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as a whole) applicable, and are more favorable reasonably acceptable to the lenders providing Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Incremental Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans than those applicable to being increased, as existing on the existing respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Loans, are added Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Lenders of the existing Term Commitments (and any Term Loans made pursuant to an amendment to thereto); provided, further, that the terms of any New Revolving Commitment may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement executed by is amended to include such financial maintenance covenant or related equity cure for the Company 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 New Revolving Commitment or covenant only applicable to, or for the benefit of, such New Revolving Commitment, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each New Revolving Commitment hereunder (and not for the Administrative Agentbenefit of any other Facility hereunder)).
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Revolving Credit CommitmentsAmount Date”). Incremental New Term Loans may be made, and Incremental or New Revolving Credit Commitments may be provided, made by any existing Lender (but no existing Lender (including the Administrative Agent in its capacity as an existing Lender) shall have any obligation to make a portion of any New Term Loan or New Revolving Commitments) or by any Additional Lender, ; provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheldconditioned, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such Incremental New Revolving Credit Commitments if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (ei) The Incremental (as applicable) shall be met, assuming that the making or provision of such New Term Loan Loans or New Revolving Commitments and Incremental is an assignment of such New Term Loans or New Revolving Credit Commitments to such Person. Commitments in respect of New Term Loans or New Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this SectionSection 2.14 and, in the case of any Incremental Amendment with respect to New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of the type being provided pursuant to the New Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) 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 as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in Section 2.24(aeach case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeapplicable Loan Documents. The Borrowers may Borrower shall use the proceeds (if any) of the Incremental New Term Loans and Incremental or New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any Incremental New Term Loans or Incremental New Revolving Credit Commitments, Commitments unless it affirmatively agrees in its sole discretionso agrees.
(gd) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence[reserved].
(he) Notwithstanding anything to the contrary in Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement, this . This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount exist. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed $200,000,000 (the “Incremental Availability”); provided, that the Borrower shall have delivered to may incur additional Incremental Term Loans hereunder and effect additional Revolving Commitment Increases hereunder (the Administrative Agent a certificate demonstrating in reasonable detail that “Incremental Acquisition Loans”), so long as, after giving effect to the incurrence of such Incremental Term Loan or borrowing under such Revolving Credit Commitment Increase, the Senior Secured Incurrence Test (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company Basis) would be in compliance with satisfied (it being understood that Incremental Acquisition Loans may be effected by the Financial Covenants recomputed as Borrower whether or not there is any unused Incremental Availability (subject to satisfaction of the end of Senior Secured Incurrence Test (on a Pro Forma Basis)); provided, further, that the most recently ended Test Period; (vi) the Borrower Incremental Availability shall deliver to the Administrative Agent (a) be reduced on a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted dollar-for-dollar basis by the board aggregate amount of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel all Indebtedness incurred pursuant to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Section 7.03(v). 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; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; , (ivc) the Incremental Term Loans shall be “Loans” hereunder and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) thereof. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if Commitment Increases if, in the case of an existing Lender, such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower or any Subsidiary Loan Party may, at any time or from time to time after the Closing Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in additional Classes of term loans (including additional delayed draw term loans) or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans (including any existing delayed draw term loans) (the “Incremental Term Loan Commitments” and the loans made thereunderLoans”), the “Incremental Term Loans” ) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches revolving commitments of Revolving Credit Commitments any Class (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase”) or (iii) one or more additional Classes of revolving commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans made pursuant theretoCommitment Increases, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and subject to Section 1.05, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (includingexcept, in the case of the incurrence or provision of any Incremental Facility in connection with an acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under Section 7.01(a), (b), (h) or (i)) unless, in connection with a Permitted Acquisition or another Investment not prohibited by the terms of this Agreement, customary “SunGard” or “certain funds” conditionality is otherwise agreed to by the Lenders providing such Incremental Facilities. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities and the aggregate principal amount of Incremental Equivalent Debt that can be incurred at any time shall not exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”).
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to Customary Bridge Loans and except with respect to an amount equal to the Maturity Carveout Amount at such time, the maturity date of any Incremental Term Loans shall not be earlier than the Initial Term Loan Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by Borrower and the applicable Additional Lenders, (C)(i) the Incremental Term Loans shall be secured solely by the Collateral on an equal and ratable basis (or a junior basis, subject to a Second Lien Intercreditor Agreement) with the Secured Obligations or shall be unsecured and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that (x) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant (which may include any related equity cure with respect thereto) is (1) also added for the benefit of any existing Loans or (2) only applicable after giving effect theretothe Latest Maturity Date and (y) any Incremental Facility that is a delayed draw term loan facility may include such conditions as the relevant lenders under such Incremental Facility may agree), no Event and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Holdings and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of Default $5,000,000 (or in connection with any Limited Condition Transaction no Event of Default unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedset forth above; provided further that, together with any Indebtedness incurred pursuant prior to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as second anniversary of the effective Effective Date, with respect to any Incremental Term Loans that are secured by a Lien on the Collateral that ranks pari passu with the Liens securing the Initial Term Loans which (x) have a maturity date less than two years after the Initial Term Loan Maturity Date and (y) are in an aggregate amount of the greater of (1) $25,000,000 and (2) 33% of Consolidated EBITDA for the most recent Test Period for which financial statements are internally available determined on a Pro Forma Basis, in the event that the Applicable Rates for such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier greater than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield Applicable Rates for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and by more than 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)per annum, then the Applicable Margin then in effect Rates for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Initial Term Loans are equal to the Applicable Rates for the Incremental Term Loans minus 0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of such differential between interest rate floors; and calculating the applicable increase (viif any) except as otherwise specified in this Section 2.24the Applicable Rates for the Initial Term Loans in the preceding provisos, the terms and conditions applicable to Applicable Rate for such Incremental Term Loans shall be on substantially deemed to be the same terms interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Initial Term Loans and conditions (taken as a whole) as the existing Incremental Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans and call protection) and amortizationthe Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) immaterial terms (1) with respect to the Initial Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor” for the Initial Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Initial Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Initial Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Initial Term Loans shall be required and (z) customary arrangement, structuring, ticking, commitment, underwriting, amendment and consent fees or other similar fees payable to the Joint Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans, as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded. Each Incremental Term Loan may otherwise have terms and conditions that are either only applicable after different from those of the Latest Maturity Date of any existing Initial Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term or Revolving Loans, are added for as applicable; provided, further, that the benefit MFN Protection may be waived at any time with the consent of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentRequired Lenders.
(c) The Incremental Revolving Credit Commitments consisting Commitment Increase shall be treated the same as the Class of an additional tranche revolving commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of revolving loans and commitments shall be on being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate marginmargins, original issue discount, rate floors and undrawn commitment fees on the Class of revolving commitments being increased may be increased and additional upfront or similar fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable may be payable to the lenders providing such the Incremental Revolving Credit Commitments than those applicable Commitment Increase (without any requirement to the pay such fees to any existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentrevolving lenders); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments).
(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 and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders 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 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 terms relating to the Letters of Credit with respect to the applicable Class of revolving commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(e) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ef) The Commitments in respect of Incremental Term Loan Commitments and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such CommitmentCommitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the Administrative Agent.
(f) Any other Loan Documents. The Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary necessary, appropriate or appropriate, advisable (including changing the amortization schedule (but not decreasing the amortization payments required to be made to any Lender) or extending the call protection or other terms of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans) in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment shall and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other additional conditions as the parties thereto shall agree. The Borrowers Holdings and its Subsidiaries may use the proceeds proceeds, if any, of the Incremental Term Loans and Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Commitments for working capital and other general corporate purposes, including the financing of permitted acquisitions, other permitted Investments, Restricted Payments and any other purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (EverCommerce Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches Classes of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to below (includingan “Incremental Effective Date”), in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche exist. Each Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered next sentence). Notwithstanding anything to the Administrative Agent contrary herein, except in the case of Refinancing Incremental Term Loans, on a certificate demonstrating in reasonable detail that Pro Forma Basis and after giving effect to the incurrence borrowing of all such Incremental Term Loans , the Senior Secured Leverage Ratio (excluding from the calculation thereof for this purpose the cash proceeds of the aggregate amount of Incremental Term Loans that are the subject of such Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Revolving Credit Commitment (assuming a full drawing thereofEffective Date) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of for the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Period shall be not more less than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms or equal to the Initial Revolving Credit Commitments.
(i) 3.75 to 1.0. 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; (ii) the Incremental then existing Term Loans (including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Latest Maturity Date applicable with respect to any then outstanding Term Loan then outstanding; Loans, (iiic) the Incremental Term Loans shall not have a weighted average life Weighted Average Life to maturity shorter Maturity that is less than the weighted average life remaining Weighted Average Life to maturity Maturity of the existing Term Loans; (iv) the Incremental Class of Term Loans with the longest Weighted Average Life to Maturity and (d) shall be treated on a pro rata or less than pro rata basis substantially the same as the other then outstanding Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans, provided, that prior to the latest Maturity Date in effect immediately prior to the Incremental Effective Date, (x) no Additional Credit Extension Amendment may provide for a financial covenant applicable only to, or materially more restrictive than a financial covenant applicable to, the Incremental Term Loans incurred pursuant to such Additional Credit Extension Amendment and (y) the Incremental Term Loans, (I) in the case of any voluntary prepayments with respect to other Classes of Term Loans hereunder, may participate on a pro rata basis or less than or greater than pro rata basis with other Classes of Term Loans hereunder, provided, further, that voluntary prepayments may be applied on a greater than pro rata basis to any Incremental Term Loans only to the extent applied to any Class or Classes of Term Loans with an earlier Maturity Date as compared with the remaining Classes of Term Loans then outstanding (it being understood the following clause (II) shall apply to any refinancing of such Class or Classes); and (II) in the case of any mandatory prepayments with respect to other Classes of Term Loans hereunder, may participate on a pro rata basis or less than pro rata basis, but not on a greater than pro rata basis except for prepayments pursuant to Section 2.05(b)(iii); and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be on substantially determined by the same terms Borrower and conditions the lenders thereof, subject to the limitation set forth in clause (taken as a wholec) as above, provided further, that in the existing event that the All-In Yield of any Incremental Term Loans, other than (x) maturity dateRefinancing Incremental Term Loans, pricingis more than 50 basis points greater than the All-In Yield of the Term B-2 Loans, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after then the Latest Maturity Date of any existing Applicable Rates for the Term Loans or, shall be increased to the extent such terms (taken as a whole) are more favorable to necessary so that the lenders providing All-In Yield for such Incremental Term Loans is no more than those applicable to 50 basis points greater than the existing Term Loans, are added All-In Yield for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) B-2 Loans. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsLoans. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing Lender or by any other bank or other financial institution approved by the Borrower (any such other bank or other financial institution being called an “Additional Lender, provided that the Administrative Agent and, with ”). Commitments in respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriateexecuted by Holdings, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental . The Additional Credit Extension 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 (solely as such amendments relate to the Administrative Agent and, in any event, not subject to the approval of any Lender, including through the operation of Section 9.01(b) (other than in such Lender’s capacity as the Administrative Agent, if applicable)), and the CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Additional Credit Extension 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Additional Credit Extension Amendment and borrowing of the payment of any fees payable in connection therewith applicable Incremental Term Loan) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionso agrees.
(gb) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this This Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (IASIS Healthcare LLC)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount exist. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed $300,000,000 (the “Incremental Availability”); provided, that the Borrower shall have delivered may incur additional Incremental Term Loans hereunder and effect additional Revolving Commitment Increases hereunder, in each case to finance Permitted Acquisitions (the Administrative Agent “Incremental Acquisition Loans”), so long as, on a certificate demonstrating in reasonable detail that Pro Forma Basis after giving effect to the incurrence of such Incremental Term Loan or borrowing under such Revolving Credit Commitment Increase, the Senior Secured Incurrence Test would be satisfied (assuming a full drawing thereof) it being understood that Incremental Acquisition Loans may be effected by the Borrower whether or not there is any unused Incremental Availability (subject to satisfaction of the Senior Secured Incurrence Test)); and provided, further, that the use of proceeds thereof Incremental Availability shall be reduced on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted dollar-for-dollar basis by the board aggregate amount of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel all Indebtedness incurred pursuant to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) Section 7.03(w). 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; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; and (ivc) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis substantially the same as the Term Loans (in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”prepayments), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margini) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to shall be determined by the existing Borrower and the lenders thereof; provided, further, that, as of the date of the incurrence of the Incremental Term Loans, are added for the benefit Weighted Average Life to Maturity of the Lenders Incremental Term Loans shall not be shorter than that of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Loans. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Incremental Term Loan, and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, Revolving Credit Commitments to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in by Holdings, the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing DateDate (on one or more occasions), by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), without having to seek consent from the Lenders, request (xa) one or more increases in any existing tranche of the Tranche B Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereundereach such increase or additional tranche, the “Incremental Tranche B Term Loans” ) or ”), (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches an existing Class of Revolving Credit Commitments (each such increase increase, a “Revolving Commitment Increase”) or one or more additional trancheTranches of revolving commitments (each, an “Incremental Revolving Credit CommitmentFacility”) and (c) in lieu of Incremental Tranche B Term Loans, any Incremental Revolving Facility 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 the Revolving Credit Loans made pursuant theretotogether with any Secured Incremental Notes, the “Incremental Revolving Credit LoansEquivalent Debt”), and Incremental Equivalent Debt, together with any Incremental Tranche B Term Loans, any Incremental Revolving Facility and any Revolving Commitment Increase, referred to herein as a “Credit Increase”) or any combination thereof in an aggregate amount not to exceed (x) with respect to the Incremental Revolving Facilities only, $25,000,000, plus (y) an unlimited amount; provided that solely with respect to clause (iy), the Consolidated Secured Gross 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 purposes of such calculation under this Section 2.25 and for the definition of Additional Term Notes in the case of clause (3) both below and not for any other purpose hereunder at the time of any such request and incurrence thereof (1) that a borrowing of the maximum amount of Incremental Revolving Loans and/or Revolving Loans available thereunder after giving effect to such Incremental Revolving Facility and/or Revolving Commitment Increase and (2) that all Indebtedness under such Credit Increases is secured) shall not exceed 3.40:1.00; 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); provided further that upon the effectiveness of any Incremental Facility Amendment referred to below below, no Event of Default shall exist and at the time that any such Credit Increase is made (including, in the case of any Incremental Term Loan, and immediately after giving effect thereto), no Event of Default (or 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 (y) prior to the utilization of any Limited Condition Transaction no Event of Default amounts under Article 8(aclause (x) or Article 8(f)(z) above even if incurred substantially contemporaneously therewith and the amounts incurred or deemed incurred pursuant to clauses (x) or (z) substantially simultaneously with an incurrence pursuant to such clause (y) shall have occurred not be included in the calculation of such clause (y); provided further that any such Indebtedness incurred pursuant to clause (x) and (z) above is hereinafter referred to as the “Unrestricted Incremental Indebtedness”; it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental 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 Indebtedness as being incurred pursuant to such clause (y) if, at the time of such redesignation, the Borrower would be continuing, (iipermitted to incur under this Section 2.25(a) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedIndebtedness being so redesignated (for purposes of clarity, together with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at redesignation by the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as amount of such dateIndebtedness so redesignated); .
(ivb) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Each Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that, in each case, 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 (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove).
(c) (i) The Each of the Incremental Tranche B Term Loans shall and the Incremental Revolving Facility may rank pari passu in right of payment security with the Revolving Loans and the Tranche B Term Loans (it being understood and agreed that any such Incremental Tranche B Term Loans and Incremental Revolving Facility 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 Credit Loans and the Tranche B Term LoansLoans and (iii) the Unsecured Incremental Notes shall be 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 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 Latest Tranche B Maturity Date applicable 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 the Tranche B Term Loans calculated without giving effect to prepayments of any amortization thereof, (ii) except as 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 then outstanding; Facility shall be as agreed between the Borrower and the lenders providing such Credit Increase, (iii) will accrue interest at rates determined by the Borrower and the lenders providing such Credit Increase; provided that with respect to any Incremental Tranche B Term Loans and Incremental Equivalent Debt (to the extent such Incremental Equivalent Debt is in the form of secured term loans), in each case secured on a pari passu basis with the Initial Tranche B Term Loans, the all-in yield (which shall not have be determined by including interest rate margins, original issue discount (based on a weighted four-year average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; maturity), upfront fees (iv) the Incremental Term Loans which shall be treated on a pro rata deemed to constitute like amounts of original issue discount) or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; LIBOR/ABR floors (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required but only to the extent an increase in the interest rate floor applicable to such in the Initial Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case case, the interest rate floor (but not the interest rate margin) applicable to such 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 (viother fees not paid generally to all lenders of such indebtedness) except as otherwise specified in this Section 2.24, the terms and conditions applicable to any Incremental Tranche B Term Loans (and, if applicable, Incremental Equivalent Debt) will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) for the Initial Tranche B Term Loans, unless the interest rate margins (or LIBOR/ABR floors) with respect to the Initial Tranche B Term Loan is increased by an amount equal to the difference between the all-in yield with respect to the Incremental Tranche B Term Loans (or such Incremental Equivalent Debt, as the case may be) and the corresponding all-in yield on the Initial Tranche B Term Loans minus 0.50%. Each Incremental Revolving Facility shall be on subject to substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floorsfees, interest rate margin, original issue discount, upfront fees maturity and call protection), (y) other immaterial terms which shall be determined by the Borrower and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentFacility); provided that no Incremental Revolving Credit Commitment Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Initial Revolving Credit Commitments.
(de) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Tranche B Term Loans may be made, and Incremental Revolving Credit Commitments Facilities and Revolving 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 being called an “Additional Lender”), provided that in the Administrative Agent and, with respect to Incremental case of a Revolving Credit CommitmentsCommitment Increase, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases, if such consent would be required under Section 10.06 10.6 for an assignment of Loans or Commitments, as applicable, Revolving Commitments to such Lender or Additional Lender.
. Commitments in respect of Credit Increases (eother than in connection with Incremental Equivalent Debt) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, any and the Administrative Agent.
(f) Any . An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions and intent of this Section. The effectiveness of any Incremental Amendment shall be subject to Section 2.25 and the satisfaction on the date thereof of each application of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreementthereof. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsIncreases, unless it affirmatively agrees so agrees. The Borrower may use the proceeds of each Credit Increase for any purpose not prohibited by this Agreement unless otherwise agreed in its sole discretion.
(g) To the extent that the connection with such Credit Increase. Any Incremental Tranche B Term Loans, Incremental Revolving Credit Commitments requested Facilities and Revolving Commitment Increase and Incremental Equivalent Debt made pursuant to this Section 2.24 consist of increases 2.25 shall be evidenced by one or more entries in the existing Register maintained by the Administrative Agent. In connection with the foregoing, the extent reasonably requested by the Lenders providing the Credit Increase, the Administrative Agent shall receive board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5.1, and, to the 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 of opinion reasonably satisfactory to the Administrative Agent). Upon each Revolving Credit Commitments,
(i) Commitments Increase pursuant to this Section 2.25, each Revolving Lender with a respect to such Class of Revolving Credit Commitment Commitments that are being incurred immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a each, an “Incremental Revolving Credit Commitment Lender”) in respect of such increaseRevolving Commitment Increase, and each such Incremental Revolving Credit Commitment 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 under such Revolving Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit and Swingline Loans under such Revolving Facility held by each Revolving Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal Lender with respect to such Class of Revolving Commitments that are being incurred at the percentage of time any Incremental Revolving Commitments are established the aggregate applicable Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the immediately after effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds Commitments shall purchase and assign at par such amounts of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans outstanding under such Revolving Facility at such time as the Administrative Agent may require such that each Revolving Lender holds its Revolving Percentage of all Revolving Loans outstanding under such Revolving Facility immediately after giving effect to all such assignments. Notwithstanding anything to the contrary contained herein, a Restricted Subsidiary that is not a Loan Party may incur Incremental Tranche B Term Loans, Incremental Revolving Facilities or any Incremental Equivalent Debt without complying with the various requirements concerning collateral and guarantors, provided that in no event shall that aggregate principal amount of all such Credit Loans being prepaid and any costs Increases incurred by a non-Loan Party exceed, when taken together with the aggregate principal amount of Non-Loan Party Additional Term Notes and Non-Loan Party Unrestricted Additional Term Notes, $40,000,000.
(f) This Section 2.25 shall supersede any Lender provisions in accordance with Section 2.212.10, Section 2.11, Section 2.17, Section 10.1 and Section 10.7 to the contrary. The Administrative Agent and the 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 the immediately preceding sentence.
(h) Notwithstanding anything to the contrary incurrence of Indebtedness expressly provided for in this Agreement, Section 2.25 and (ii) waive the requirements of any other provision of this Agreement or any other Loan Document that may otherwise prohibit the incurrence of any Indebtedness expressly provided for by this Section 2.24 shall supersede 2.25. Notwithstanding any provisions in Sections 2.18 or 10.01 to other provision of any Loan Document, the contrary and the Borrower and Loan Documents may be amended by the Administrative Agent may amend Section 2.18 solely and the Borrower, if necessary or reasonably advisable, to the extent necessary provide for terms applicable to give effect to the permitted terms and conditions of any Incremental AmendmentTranche B Term Loans, Incremental Revolving Facility, Revolving Commitment Increase and Incremental Equivalent Debt.
Appears in 1 contract
Samples: Credit Agreement (21st Century Oncology Holdings, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental New Term Loans”), which may be of the same Class as any existing Class of Term Loans (a “Term Loan Commitments” and the loans made thereunderIncrease”) or a separate Class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Loans” Commitments”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase increase, a “Revolving Commitment Increase” or additional tranche, an the “Incremental New Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitments”), ; provided that (i) both at the time of any such request immediately before and immediately after giving effect to the effectiveness of any Incremental Amendment referred to below below, (including, A) subject to the Borrower’s discretion to make an LCT Election in the case of any Incremental connection with a Term Loan, after giving effect thereto)Loan Increase or New Term Commitments, no Event of Default shall exist and (B) except as provided in the immediately following proviso, the condition precedent in Section 4.02(a) shall be satisfied; provided, that, with respect to any incurrence of Term Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment, in connection with any each case, that is a Limited Condition Transaction no Event of Default under Article 8(a) (or Article 8(f)) shall have occurred and be continuing, (ii) if the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(yRequired Lenders otherwise consent), the Incremental Cap Amountforegoing requirement in (B) shall instead be that all Specified Representations (conformed as reasonably necessary for any such Investment or Permitted Acquisition, (iiito reflect at the option of the Borrower customary “SunGard” representations) the representations and warranties in Article 4 shall be true and correct in all material respects respects; provided further that, for purposes of funding any such New Term Loans, the conditions in clauses (except that any representation A) and warranty that is qualified (B) may be waived in full or in part by materiality shall be true and correct in all respects) on and as Lenders holding more than 50% of the effective date of applicable aggregate New Term Commitments and New Term Loans to be incurred pursuant to such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each Amendment. Each tranche of Incremental New Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 1,000,000 (provided that such amount may be less than $1,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental New Revolving Credit Commitment Commitments shall be in an aggregate principal amount that is not less than $5,000,000 1,000,000 (provided that, in each case, that such amount may be less than $1,000,000 if such lesser amount if (x) is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agentcontrary herein, (v) if an Incremental the aggregate principal amount of the New Term Loans at the time of incurrence thereof, when added to the aggregate principal amount of New Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to Commitments and any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such Incremental New Term Loans and/or New Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to exceed the transactions effected pursuant to Available Incremental Amount at the immediately preceding sentencetime of incurrence or issuance thereof.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement (Solo Brands, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and Loans”) xxxxx (ii) subject to the loans made thereunderlast sentence of this paragraph (a), the “Incremental Term Loans” ) or (y) establishment of one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches (which may be established as a separate tranche of Revolving Credit Commitments revolving loans with terms as described below) (each such increase or additional trancheincrease, an a “Incremental Revolving Credit CommitmentCommitment Increase” and, together with the Incremental Term Loans, the “New Loan Commitments”), and the commitments in respect thereof, the “New Loan Commitments”)) by an amount not to exceed the sum of (x) $250,000,000 (the “Cash-Capped Incremental Facility”), plus (y) an unlimited additional amount (the “Ratio-Based Incremental Facility”) so long as the pro forma Consolidated Net Senior Secured Leverage Ratio of the Borrower and its Subsidiaries after giving effect to such Incremental 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 pari passu Term Loans made pursuant to Section 2.11(a) and repurchases of pari passu Term Loans made pursuant to the terms hereof and voluntary prepayments of Revolving Credit Loans made pursuant theretoto Section 2.11(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.11(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (the “Prepayment-Based Incremental Facility”) (such sum, at any such time, the “Incremental Revolving Credit LoansAmount”); provided, provided further, that (i) both at the time for purposes of any such request New Loan Commitments established pursuant to this Section 2.25 and after giving effect Incremental Equivalent Debt incurred pursuant to Section 2.26, (A) the Borrower may elect to use the Ratio-Based Incremental Facility prior to the effectiveness Cash-Capped Incremental Facility or the Prepayment Based Incremental Facility, (B) if either the Cash-Capped Incremental Facility or the Prepayment Based Facility are available and the Borrower does not make an election, 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, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any 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 Cash-Capped Incremental Amendment referred to below (including, in Facility or Prepayment-Based Incremental Facility) and then calculating the case of any incurrence under the Cash-Capped Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred Facility and be continuing, (iithe Prepayment-Based Incremental Facility.y) the aggregate principal amount of the New Incremental Term Loans and Incremental Revolving Credit Commitments established in connection with Amendment No. 2 (provided that shall be incurred any payments or that shall become effective prepayments in respect thereof shall not exceedincrease capacity for future New Loan Commitments hereunder) plus (z)(i) from the Amendment No. 2 Effective Date to and including the Q3 End Date, together with any Indebtedness incurred pursuant $50,000,000, of which only $25,000,000 may be provided by lenders who were not Term Loan Lenders (or Affiliates of (or funds, partnerships, accounts, investment vehicles or other entities managed or advised by) Term Loan Lenders or their Affiliates) immediately prior to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date effectiveness of such Incremental Term New Loan or Incremental Revolving Credit Commitment Commitments (or, at the option of the Company, as modified in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered intothe
(a) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a whole multiple of $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that 5,000,000 which is not less than $5,000,000 25,000,00010,000,000 (provided that, in each case, that such amount may be less than such amount $25,000,00010,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereofnext sentence) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield four requests for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 appropriateIncreases, in each case, following the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this SectionAmendment No. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.2
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans or an increase in one or more existing tranches of term loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Dollar Revolving Credit Commitments and/or additional tranches of or Multicurrency Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (ix) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (or y) at the time of any request and as of the date an Incremental Term Loan is made, the Borrower would be in connection compliance with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount Section 7.1. Each tranche of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agentcontrary herein, (v) if an the aggregate amount of the Incremental Term Loans, when added to the aggregate amount of Revolving Credit Commitment is requestedIncreases, shall not exceed $250,000,000, and the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use increases shall not exceed $125,000,000. Each tranche of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent Incremental Term Loans (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable maturity date with respect to any existing Term Loan then outstanding; Loans, and (iiic) except as set forth above, shall be treated substantially the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of same as the existing Term Loans; Loans (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loansprepayments); provided, that (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vii) except as otherwise specified provided in this Section 2.24preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agentlenders thereof.
(cb) Each series of Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Term Loans borrowed pursuant to this Section shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such a separate Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Term Loan Facility. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender”).
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Parent Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunderLoans”), the “Incremental Term Loans” ) or (y) one or more increases in the amount of the US$ Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase increase, a “US$ Revolving Commitment Increase”) or additional tranche(z) one or more increases in the amount of the Multicurrency Revolving Commitments (each such increase, an a “Incremental Multicurrency Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred exist and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that Parent Borrower shall be incurred or that shall become effective shall not exceed, together in compliance with any Indebtedness incurred pursuant to the covenants set forth in Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) 7.1 determined on and a pro forma basis as of the effective date last day of the most recent fiscal quarter for which financial statements have been delivered hereunder, in each case, as if such Incremental Term Loan Loans, US$ Revolving Commitment Increases or Incremental Multicurrency Revolving Credit Commitment (orIncreases, at the option of the Companyas applicable, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, had been outstanding on the date on which the definitive agreement last day of such fiscal quarter for such acquisition or investment is entered into) (except testing compliance therewith and after giving effect to the extent such representations and warranties are specifically made as intended use of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each proceeds thereof. Each tranche of Incremental Term Loans Loans, each US$ Revolving Commitment Increase and each Multicurrency Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $50,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above the next sentence or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested). Notwithstanding anything to the contrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Loans, the US$ Revolving Credit Commitment, as applicable, on Commitment Increases and the date thereof, dated as of the effective date of such increase and (vii) there Multicurrency Revolving Commitment Increases shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) exceed $350,000,000. The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) . Each notice (each, an “Incremental Facility Activation Notice”) from the Company Parent Borrower pursuant to this Section 2.24 2.23, which shall be in form reasonably satisfactory to the Administrative Agent, shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, US$ Revolving Commitment Increases or Multicurrency Revolving Commitment Increases, including, in the case of Incremental Term Loans, (i) the applicable Incremental Term Maturity Date, (ii) the amortization schedule, if any, for such Incremental Term Loans, (iii) the Applicable Margin for such Incremental Term Loans or and (iv) the proposed original issue discount applicable to such Incremental Revolving Credit CommitmentsTerm Loans, if any. Incremental Term Loans may be made, and Incremental US$ Revolving Credit Commitments Commitment Increases or Multicurrency Revolving 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 being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental US$ Revolving Credit Commitments Commitment Increases or Multicurrency Revolving Commitment Increases if such consent would be required under Section 10.06 10.6 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans, US$ Revolving Commitment Increases and Incremental Multicurrency Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a US$ Revolving Credit Commitment Increase or a Multicurrency Revolving Commitment Increase to be provided by an existing Lender with a US$ Revolving Credit Commitment or a Multicurrency Revolving Commitment, as applicable, an increase in such Lender’s applicable US$ Revolving Credit Commitment or the provision of a new Incremental Multicurrency Revolving Credit Commitment, as applicable) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyParent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) . Any 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 CompanyParent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the (i) execution of a New Lender Supplement by each Lender not previously party to this Agreement, and (ii) satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 2.24(a)5.2 and, if applicable Section 5.3 (it being understood that all references to “the date of such extension of credit” or similar language in such Section 5.2 and, if applicable, Section 5.3, shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers Parent Borrower may use the proceeds of the Incremental Term Loans Loans, US$ Revolving Commitment Increases and Incremental Multicurrency Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans Loans, US$ Revolving Commitment Increases or Incremental Multicurrency Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that US$ Revolving Commitments or the Incremental Multicurrency Revolving Credit Commitments requested Commitments, if any, pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
Section, (ia) each Lender with a US$ Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental US$ Revolving Credit Commitment Increase (each a “Incremental US$ Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental US$ Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a US$ Revolving Credit Commitment (including each such Incremental US$ Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate US$ Revolving Credit Commitments of all Lenders with US$ Revolving Credit Commitments represented by such Lender’s US$ Revolving Credit Commitment and (iib) if, on the date of such increase, there are any US$ Revolving Credit Loans or Multicurrency Revolving Loans outstanding, such US$ Revolving Credit Loans or Multicurrency Revolving Loans, as applicable, shall on or prior to the effectiveness of such Incremental US$ Revolving Credit Commitment Increase or Multicurrency Revolving Commitment Increase, as applicable, be prepaid from the proceeds of additional US$ Revolving Credit Loans or Multicurrency Revolving Loans, as applicable, made hereunder (reflecting such increase in US$ Revolving Credit Commitments or Multicurrency Revolving Commitments, as applicable), which prepayment shall be accompanied by accrued interest on the US$ Revolving Credit Loans or Multicurrency Revolving Loans, as applicable, being prepaid and any costs incurred by any Lender in accordance with Section 2.212.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.23 shall supersede any provisions in Sections 2.18 or 10.01 Section 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches classes of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), ) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred exist and be continuing, (ii) the aggregate principal amount Company shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the last day of the most recent Test Period ended prior to the applicable Incremental Facility Closing Date, in each case, as if such Incremental Term Loans or Revolving Commitment Increase, as applicable, had been outstanding on the last day of such Test Period. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 20,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $20,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental and the Revolving Credit CommitmentCommitment Increases shall not exceed, as applicable, on at the date thereof, dated as time of the effective date incurrence of any such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans or Revolving Commitment Increases, the Incremental Amount at such time. Each tranche of Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable Date, (c) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity then in effect for any Term Loan then outstanding; (iii) Loans outstanding at the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity time of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vid) except as otherwise specified set forth above, shall be treated substantially the same as the Term Loans (in this Section 2.24each case, including with respect to mandatory and voluntary prepayments); provided that (i) the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates, margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) thereof. Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Incremental Term Loan, and each existing Revolving Credit Lender will have the right, but no obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender, ”); provided that the Administrative Agent and, with respect to Incremental and each L/C Issuer (in the case of a Revolving Credit Commitments, each Issuing Lender Commitment Increase) shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by Holdings, the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 Company, to effect the provisions of this SectionSection (including, if applicable, any amendment necessary to treat any Incremental Term Loans as a new “Class” of Loans hereunder). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Company will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees so agrees. Upon each increase in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (DJO Finance LLC)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Restatement Effective Date, by written notice delivered to the Term Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche additional Classes of term loans (each, an “Incremental Term Loans or Facility”), (ii) one or more additional tranches term loans of the same Class of any existing Class of term loan commitments loans (the each, an “Incremental Term Loan CommitmentsIncrease”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and the loans made thereunderand, together with each such tranche thereafter, the “Incremental Term Loans” Revolving Facilities”) or (yiv) one or more increases in the amount of the any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments Loans (each such increase or additional trancheeach, an “Incremental Revolving Credit Commitment” Increase”, and the together with any Incremental Term Facility, Incremental Term Increase and Incremental Revolving Credit Loans made pursuant theretoFacilities, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan or Incremental Revolving Loan is made or effected, (includingx) no Event of Default (except, in the case of the incurrence or provision of any Incremental Term LoanFacility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, after giving effect thereto), no for which a Specified Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)shall be the standard) shall have occurred and be continuing, continuing and (iiy) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties in Article 4 III shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Facility (or, at the option of the Companyexcept, in the case of the incurrence or provision of any Incremental Term Loans Facility in connection with a Permitted Acquisition or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transactionother Investment not prohibited by the terms of this Agreement, on the date on for which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount of $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 is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall (i) rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans; , (ii) if secured, be secured only by the Incremental Term Loans Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Latest Term Maturity Date applicable to any Term Loan then outstanding; Date, (iiic) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining 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, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; (iv) the provided that, for any Incremental Term Loans shall be treated that rank equal in right of payment with the Term Loans and are secured on a pro rata or less pari passu basis with the Collateral securing the Loan Document Obligations incurred prior to the date that is twelve months after the Effective Date, in the event that the Effective Yield for any such Incremental Term Loans is greater than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of by more than 0.50% per annum, then the Effective Yield then applicable to for the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such differential between interest rate floors; and Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” applicable to Incremental the outstanding Term Loans shall be on substantially increased to an amount not to exceed the same “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 conditions different from those of the Term Loans (taken as a wholeincluding currency denomination); provided that (x) as to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans, other than Loans (x) maturity date, pricingexcept with respect to matters contemplated by clauses (b), (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionc) and amortization(d) above) the terms, conditions and documentation of any such Incremental Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility or Incremental Term Increase, subject to the restrictions and exceptions set forth above.
(yc) immaterial The Incremental Revolving Facilities shall be on terms and (z) terms documentation as determined by the Borrower and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to Revolving Facility; provided that any Incremental Revolving Facility (a) shall (i) rank equal or junior in right of payment with the existing Term Loans, are added (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 provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the benefit ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not 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 Lenders of the existing Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to an amendment to this Agreement executed documentation as determined by the Company Borrower and the Administrative AgentAdditional Revolving Lenders providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(cd) The Incremental Revolving Credit Commitments consisting 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, if required to consummate an Incremental Revolving Increase, the 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 additional tranche of revolving loans and commitments upfront or similar fees may be payable to the lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Incremental Revolving Lenders)). Any Incremental Revolving Increase shall be on the same terms and conditions as pursuant to the Initial same documentation applicable to the Incremental Revolving Credit Commitments Loans (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, excluding upfront fees and call protectioncustomary arranger fees), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(de) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderLoans.
(ef) The Commitments in respect of any Incremental Term Loan Commitments and Increase or Incremental Revolving Credit Commitments Increase shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender 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 prior written consent of the Borrower (fnot to be unreasonably withheld), 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 provide any Incremental Term Loans or Incremental Revolving Loans) Any or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Term Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and or Incremental Revolving Credit Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Restatement Agreement (Installed Building Products, Inc.)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans or an increase in one or more existing tranches of term loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Dollar Revolving Credit Commitments and/or additional tranches of or Multicurrency Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (ix) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (includingbelow, in no Default or Event of Default shall exist and at the case of time that any such Incremental Term Loan, Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (or y) at the time of any request and as of the date an Incremental Term Loan is made, the Borrower would be in connection compliance with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount Section 7.1. Each tranche of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agentcontrary herein, (v) if an the aggregate amount of the Incremental Term Loans, when added to the aggregate amount of Revolving Credit Commitment is requestedIncreases, shall not exceed $275,000,000, and the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use increases shall not exceed $150,000,000. Each tranche of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent Incremental Term Loans (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans; , (iib) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable maturity date with respect to any existing Term Loan then outstanding; Loans, and (iiic) except as set forth above, shall be treated substantially the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of same as the existing Term Loans; Loans (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any each case, including with respect to mandatory and voluntary prepayments of the existing Term Loansprepayments); provided, that (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vii) except as otherwise specified provided in this Section 2.24preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans shall may be on substantially materially different from those of the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) differences are more favorable reasonably acceptable to the lenders providing such Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed shall be determined by the Company Borrower and the Administrative Agentlenders thereof.
(cb) Each series of Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Term Loans borrowed pursuant to this Section shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such a separate Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Term Loan Facility. Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such ”). Incremental Term Loans or providing such Incremental shall be effected, and Revolving Credit Commitment Increases shall become Dollar Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Multicurrency Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
hereunder (e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or or, in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Dollar Revolving Credit CommitmentLender or Multicurrency Revolving Credit Lender, as applicable, an increase in such Lender’s applicable Dollar Revolving Credit Commitment or the provision of a new Incremental Multicurrency Revolving Credit CommitmentCommitments, as applicable) under this Agreement and each Additional Lender shall become a Lender hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrower, to effect the provisions of this Section. In addition, the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Incremental Amendment (including confirmation that the obligations of the Loan Parties with respect to an increase to the existing Dollar Revolving Loan Commitments or Multicurrency Revolving Credit Commitments, as applicable, (and any Loans or extensions of credit thereunder) or an Incremental Term Loan are secured by the Collateral and the perfection and priority of the Administrative Agent’s Lien in such Collateral has not been affected by a Revolving Credit Commitment Increase or the Incremental Term Loans as applicable). 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 2.24(a), 5.2 (it being understood that all references to “the date of such extension of credit” or similar language in such Section 5.2 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitment Increases unless it so agrees.
(c) Upon each increase in the Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested as applicable, pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
Section, (i) each Lender with a Dollar Revolving Credit Commitment Lender or Multicurrency Revolving Credit Lender, as applicable, immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each each, a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s or Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit, Multicurrency Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Dollar Letters of Credit or Multicurrency Letters of Credit and (y) participations hereunder in Swing Line Loans held by each Lender with a Dollar Revolving Credit Commitment Lender or Multicurrency Revolving Credit Lender, as applicable (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments of all Lenders with Dollar Revolving Credit Commitments Lenders or Multicurrency Revolving Credit Commitments, as applicable, represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.25 shall supersede any provisions in Sections 2.18 or 10.01 Section 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Effective Date, by written notice delivered to the Term Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche additional Classes of term loans (each, an “Incremental Term Loans or Facility”), (ii) one or more additional tranches term loans of the same Class of any existing Class of term loan commitments loans (the each, an “Incremental Term Loan CommitmentsIncrease”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and the loans made thereunderand, together with each such tranche thereafter, the “Incremental Term Loans” Revolving Facilities”) or (yiv) one or more increases in the amount of the any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments Loans (each such increase or additional trancheeach, an “Incremental Revolving Credit Commitment” Increase”, and the together with any Incremental Term Facility, Incremental Term Increase and Incremental Revolving Credit Loans made pursuant theretoFacilities, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan or Incremental Revolving Loan is made or effected, (includingx) no Event of Default (except, in the case of the incurrence or provision of any Incremental Term LoanFacility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, after giving effect thereto), no for which a Specified Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)shall be the standard) shall have occurred and be continuing, continuing and (iiy) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties in Article 4 III shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Facility (or, at the option of the Companyexcept, in the case of the incurrence or provision of any Incremental Term Loans Facility in connection with a Permitted Acquisition or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transactionother Investment not prohibited by the terms of this Agreement, on the date on for which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount of $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 is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall (i) rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans; , (ii) if secured, be secured only by the Incremental Term Loans Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Latest Term Maturity Date applicable to any Term Loan then outstanding; Date, (iiic) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining 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, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; (iv) the provided that, for any Incremental Term Loans shall be treated that rank equal in right of payment with the Term Loans and are secured on a pro rata or less pari passu basis with the Collateral securing the Loan Document Obligations incurred prior to the date that is six months after the Effective Date, in the event that the Effective Yield for any such Incremental Term Loans is greater than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of by more than 0.50% per annum, then the Effective Yield then applicable to for the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such differential between interest rate floors; and Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “SOFR floor” applicable to Incremental the outstanding Term Loans shall be on substantially increased to an amount not to exceed the same “SOFR 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 conditions different from those of the Term Loans (taken as a wholeincluding currency denomination); provided that (x) as to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans, other than Loans (x) maturity date, pricingexcept with respect to matters contemplated by clauses (b), (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionc) and amortization(d) above) the terms, conditions and documentation of any such Incremental Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility or Incremental Term Increase, subject to the restrictions and exceptions set forth above.
(yc) immaterial The Incremental Revolving Facilities shall be on terms and (z) terms documentation as determined by the Borrower and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to Revolving Facility; provided that any Incremental Revolving Facility (a) shall (i) rank equal or junior in right of payment with the existing Term Loans, are added (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 provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the benefit ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not 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 Lenders of the existing Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to an amendment to this Agreement executed documentation as determined by the Company Borrower and the Administrative AgentAdditional Revolving Lenders providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(cd) The Incremental Revolving Credit Commitments consisting 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, if required to consummate an Incremental Revolving Increase, the 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 additional tranche upfront or similar fees may be payable to the Lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Lender of revolving loans and commitments Incremental Revolving Loans)). Any Incremental Revolving Increase shall be on the same terms and conditions as pursuant to the Initial same documentation applicable to the Incremental Revolving Credit Commitments Loans (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, excluding upfront fees and call protectioncustomary arranger fees), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(de) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderLoans.
(ef) The Commitments in respect of any Incremental Term Loan Commitments and Increase or Incremental Revolving Credit Commitments Increase shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender 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 prior written consent of the Borrower (fnot to be unreasonably withheld), 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 provide any Incremental Term Loans or Incremental Revolving Loans) Any or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Term Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and or Incremental Revolving Credit Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Installed Building Products, Inc.)
Incremental Credit Extensions. (a) The Company Parent Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xa) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans or increases of an existing tranche of Term Loans (the “Incremental Term Loan Commitments” Loans”) and the loans made thereunder, the “Incremental Term Loans” ) or (yb) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount exist. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence aggregate amount of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental and the Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there Commitment Increases shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsexceed $150,000,000.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(db) Each notice from the Company Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that (i) the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
, (eii) The each Revolving Credit Lender shall have a right of first refusal (which right shall expire after ten (10) Business Days) to provide such Revolving Commitment Increases in accordance with their Pro Rata Share and if any Revolving Credit Lender elects not to participate or their right expires, then each Term Lender shall have a right to provide such declined portion in accordance with their Pro Rata Share (which right shall expire after ten (10) Business Days), (iii) each Term Lender shall have a right of first refusal (which right shall expire after ten (10) Business Days) to provide such Incremental Term Loan Commitments Loans in accordance with their Pro Rata Share, and (iv) the Incremental Term Loans and/or Revolving Commitment Increases may only be incurred and consummated if the result of (x) the Borrowing Base (as calculated in the last Borrowing Base Certificate delivered to the Administrative Agent) minus (y) the aggregate Revolving Credit Exposure minus (z) the aggregate amount of outstanding Term Loans is greater than $25,000,000. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyParent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Each Lender agreeing to provide such Commitment shall execute and deliver to the Administrative Agent an acknowledgment to any existing agreement among lenders.
(fc) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) shall not mature earlier than the Maturity Date with respect to the Initial Term Loans (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan shall mature on the Maturity Date of such Class being increased) and (iii) shall be treated substantially the same as the Initial Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (A) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates) are reasonably acceptable to the Administrative Agent and (B) the interest rate applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided however that the interest rate applicable to the Incremental Term Loans shall not be greater than the highest interest rate that may, under any circumstances, be payable with respect to the Term Loans unless the interest rate with respect to the Term Loans is increased so as to result in the interest rate applicable to the Term Loans being equal to the interest rate applicable to the Incremental Term Loans; provided, further, that the Incremental Term Loans shall not have (i) a Weighted Average Life to Maturity shorter than that of the Initial Term Loans (except by virtue of prepayment of the Initial Term Loans prior to the time of such incurrence), (ii) any scheduled amortization and (iii) any financial covenant unless (x) such financial covenant applies only after the Maturity Date or (y) to the extent such financial covenant applies prior to the Maturity Date, this Agreement is amended to provide the Lenders holding the Term Loans the benefit of such financial covenant (which amendment may be made solely by an agreement entered into between the Administrative Agent and the Parent Borrower).
(d) Any Revolving Commitment Increase shall be on the same terms (including, without limitation, with respect to pricing) and treated the same as the existing Facility (including, without limitation, with respect to maturity date thereof) and shall be considered to be part of the Facility, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof.
(e) The Incremental Amendment may, without the consent of any other LendersLenders or Loan Parties, 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 CompanyParent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Parent Borrower shall use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(gf) To Upon each increase in (A) the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.14, (x) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (iiy) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hg) Notwithstanding the foregoing, the Administrative Agent may at any time or from time to time after the Closing Date, by notice to the Parent Borrower and the Lenders, elect to increase the amount of the aggregate Revolving Credit Commitments (each such increase, a “Specified Revolving Commitment Increase”); provided that, the selection of each Revolving Commitment Increase Lender providing a Specified Revolving Commitment Increase shall be subject to the consent of the Parent Borrower (such consent not to be unreasonably withheld or delayed); provided further that no consent of the Parent Borrower shall be required for (i) a Lender, an Affiliate of a Lender or an Approved Fund providing a Specified Revolving Commitment Increase or (ii) if an Event of Default under Section 8.01(a) or, solely with respect to any Borrower, Section 8.01(f) has occurred and is continuing, any Revolving Commitment Increase Lender providing a Specified Revolving Commitment Increase. Each Specified 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 limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Specified Revolving Commitment Increases shall not exceed $75,000,000.
(h) Each notice from the Administrative Agent pursuant to Section 2.14(g) shall set forth the amount of the relevant Specified Revolving Commitment Increase. A Specified Revolving Commitment Increase may be provided, by any existing Lender or by any other lender, in each case, selected by the Administrative Agent. Commitments in respect of a Specified Revolving Commitment Increase shall become Revolving Credit 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 (a “Specified Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Each Lender agreeing to provide such Specified Revolving Commitment Increase shall execute and deliver to the Administrative Agent an acknowledgment to any existing agreement among lenders
(i) Any Specified Revolving Commitment Increase shall be on the same terms (including, without limitation, with respect to pricing) and treated the same as the existing Facility (including, without limitation, with respect to maturity date thereof) and shall be considered to be part of the Facility.
(j) The Specified Incremental Amendment may, without the consent of any other Lenders or Loan Parties, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section.
(k) Upon each increase in (A) the Revolving Credit Commitments pursuant to this Section 2.14(g), (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Specified Revolving Commitment Increase (each a “Specified Revolving Commitment Increase Lender”), and each such Specified Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Specified 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 and (y) 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 Specified Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement, Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Upon the effectiveness of any Specified Incremental Amendment and after the payments described above in this Section 2.24 2.14(k), the Parent Borrower shall be deemed to immediately draw Revolving Credit Loans in an amount equal to the Specified Revolving Commitment Increase thereunder and use such proceeds to make a corresponding prepayment of the Term Loan, without any premium or penalty.
(l) This Section 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Commitment Increase”) from Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any such Revolving Commitment Increase and NAI-1532775236v11532775236v9 84 Blue Bird Body Company Credit Agreement assuming that such Revolving Commitment Increase is fully drawn) with the effectiveness of any Incremental Amendment referred to below Financial Performance Covenant (including, i) in the case of Section 6.10(a) and (b), on a Pro Forma Basis as of the last day of the most recently ended Test Period (with any proceeds of any Incremental Term Loan, after giving effect theretoRevolving Increase and anyor Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio), no Event (ii) in the case of Default Section 6.10(c), on the applicable date most recently tested (or in connection with any Limited Condition Transaction no Event proceeds of Default under Article 8(aany Incremental Revolving Increase or Cure Amounts to be excluded for purposes of the calculation of such Liquidity) or Article 8(fand (iii) in the case of Section 6.10(d), for the most recently ended applicable three-month period, (C) the Borrower shall have occurred delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) such Revolving Commitment Increase shall be continuingon the same terms (other than any upfront fees) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, (A) the sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of Incremental all Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective Commitment Increases shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), exceed the Incremental Cap Amountand (B) no more than four such Revolving Commitment Increases and Term Commitment Increases, (iii) taken together, may be made during the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as term of the effective date of such Incremental Term Loan or Incremental this Agreement. Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 provided thatand integral multiples of $5,000,000 in excess thereof.
(b) At any time and from time to time after the Closing Date, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under subject to the limit terms and conditions set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedherein, the Borrower shall have delivered may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a certificate demonstrating in reasonable detail “Term Commitment Increase”, and the term loans made thereunder, “Incremental Term Loans”) from one or more Incremental Term Lenders; provided that after giving effect to at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment and the incurrence of any such Incremental Revolving Credit Commitment Term Loans, (assuming a full drawing thereofA) and the use of proceeds thereof conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis the Company would be in compliance (before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase) with the Financial Covenants recomputed Performance Covenant (i) in the case of Section 6.10(a) and (b), on a Pro Forma Basis as of the end last day of the most recently ended Test Period; Period (viwith any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio), (ii) in the case of Section 6.10(c), on the applicable date most recently tested (with any proceeds of any Incremental Term Loans or Cure Amounts to be excluded for purposes of the calculation of such Liquidity) and (iii) in the case of Section 6.10(d), for the most recently ended applicable three-month period, (C) the Borrower shall deliver to the Administrative Agent (a) have delivered a certificate of each Loan Party dated as of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term loans incurred pursuant to such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increase shall not mature be earlier than the Latest Maturity Date applicable then in effect and the Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Loan then outstanding; Commitment Increase shall be no shorter than the Weighted Average Life to Maturity of the Term Loans, (iiiE) the interest rate margins and, subject to clause (D), the amortization schedule for any term loans incurred pursuant to such Term Commitment Increase shall be determined by the Borrower and the Incremental Term Loans shall not have a weighted average life to maturity shorter than Lenders with the weighted average life to maturity applicable Term Commitment Increases; provided that in the event that the All-In Yield of any Term Commitment Increase effected exceeds the All-In Yield of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less by more than pro rata 50 basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)points, then the Applicable Margin then in effect Rate for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such differential between term loans incurred pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that to the extent the All-In Yield with respect to such Term Commitment Increase is greater than such All-In Yield with respect to the existing Term Loans solely as a result of a higher interest rate floors; and (vi) except as otherwise specified in this Section 2.24floor, then the terms and conditions applicable increase to Incremental Term Loans the Applicable Rate shall be effected solely by increasing the NAI-1532775236v11532775236v9 85 Blue Bird Body Company Credit Agreement interest rate floor on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than and (xF) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial any Incremental Term Facility Amendment shall be on the terms and (z) terms pursuant to documentation to be determined by the Borrower and conditions the Incremental Term Lenders with the applicable Term Commitment Increases; provided that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms and documentation are not consistent with this Agreement (taken as a whole) are more favorable except to the lenders providing such Incremental Term Loans than those applicable extent permitted by clauses (D) or (E) above), they shall be reasonably satisfactory to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent. Notwithstanding anything to contrary herein, (A) the sum of (i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases shall not exceed the Incremental Cap and (B) no more than four such Term Commitment Increases and Revolving Commitment Increases, taken together, may be made during the term of this Agreement. Each Term Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $5,000,000 in excess thereof.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitment Increase or Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(eii) The Incremental Term Loan Commitments and Incremental in respect of any Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental any Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Revolving Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Incremental Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Revolving Commitment Increase) Any or by any Incremental Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Effective Date”) of each of the conditions set forth in Section 2.24(a4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Effective Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, each applicable Incremental Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), of the payment of by any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Incremental Term Loans Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or Incremental Revolving Credit Commitmentsappropriate, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit Commitment Term Facility Amendment shall be subject to the satisfaction on the date thereof (each a each, an “Incremental Revolving Credit Commitment LenderTerm Facility Effective Date”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder conditions set forth in Letters of Credit held by each Lender with a Revolving Credit Commitment Section 4.02 (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of it being understood that all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on references to “the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans Borrowing” in Section 4.02 shall on or prior be deemed to refer to the effectiveness of such Incremental Revolving NAI-1532775236v11532775236v9 86 Blue Bird Body Company Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments)Agreement Term Facility Effective Date) and, which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to extent reasonably requested by the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this AgreementAdministrative Agent, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and receipt by the Administrative Agent may amend of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 2.18 solely 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the extent necessary to give effect to the permitted terms and conditions of any Incremental AmendmentAdministrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time after the Closing Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in additional Classes of term loans or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunderLoans”), the “Incremental Term Loans” ) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Class (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Incremental Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans made pursuant theretoCommitment Increases, the “Incremental Revolving Credit LoansFacilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, provided that (i) both subject to Section 1.10, at the time of that any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with any Limited Condition Transaction an Acquisition, (x) no Event of Default under Article 8(aSection 7.01(a), (b), (h) or Article 8(f(i)) shall have occurred and be continuing, continuing and (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iiiy) the representations and warranties of each Loan Party set forth in Article 4 the Loan Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan Borrowing or Incremental Revolving Credit Commitment (orthe date of issuance, at the option amendment, renewal or extension of the Companysuch Letter of Credit, in as the case may be before and after giving effect to such Borrowing or issuance, amendment, renewal or extension of Incremental Term Loans or Incremental Revolving such Letter of Credit Commitments incurred and to finance a Limited Condition Transactionthe application of proceeds therefrom, as though made on the date on which the definitive agreement for and as of such acquisition or investment is entered into) (except date; provided that, to the extent that such representations and warranties are specifically made as of a particular daterefer to an earlier date or period, in which case such representations and warranties they shall be true and correct in all material respects (except as of such earlier date or period; provided further that any representation and warranty that is qualified by materiality as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects) as respects on the date of such credit extension or on such earlier date, as the case may be (after giving effect to such qualification); .
(ivb) Each tranche of Incremental Term Loans, each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 Revolving Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, (it being understood that such amount may be less than such amount $5,000,000 if (x) such amount represents all remaining availability under the limit set forth below) (and in clause (ii) above or (y) if otherwise agreed to by the Administrative Agentminimum increments of $1,000,000 in excess thereof), (v) if an Incremental Revolving Credit Commitment is requestedand, the Borrower shall have delivered subject to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of proviso at the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”this Section 2.20(b), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making aggregate amount of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to Incremental Revolving Commitment Increases and the extent an increase in Incremental Revolving Commitments (after giving pro forma effect thereto and the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit use of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(cproceeds thereof) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Incurred pursuant to this Section 2.24 2.20(b), shall set forth the requested amount and proposed terms not exceed, as of the relevant date of Incurrence of such Indebtedness or commitments, the sum of
(A) the Incremental Term Loans Base Amount plus
(B) an aggregate amount of Indebtedness, such that, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not Specified Restructuring to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable consummated in connection therewith and such assuming that all Incremental Revolving Commitment Increases, Incremental Revolving Commitments and other conditions Incremental Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Xxxx Xxxxx Leverage Ratio as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion last day of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall Test Period most recently ended on or prior to the effectiveness Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder Test Period, that is no greater than 3.50:1.00 (reflecting such increase in Revolving Credit Commitmentsthis clause (B), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance “Incremental Ratio Debt Amount” and, together with Section 2.21. The Administrative Agent and the Lenders hereby agree that Incremental Base Amount, 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.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any “Incremental Amendment.Limit”); provided that
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in additional Classes of term loans or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or and/or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase” and and, together with the Revolving Credit Loans made pursuant theretoIncremental Term Loans, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (ix) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and (includingy) at the time that any such Incremental Term Loan or Incremental Revolving Commitment Increase is made or effected, (i) no Event of Default shall have occurred and be continuing; provided further that, in the case of any Incremental Term LoanLoans the proceeds of which will be used to finance a Limited Condition Acquisition, after giving effect thereto)for purposes of clause (y) above, (1) no Event of Default (or in connection shall have occurred and be continuing at the time that the definitive documentation with any respect to such Limited Condition Transaction Acquisition is entered into by the parties thereto and (2) no Event of Default under Article 8(aSection 7.01(a), (b), (h) or Article 8(f)(i) shall have occurred and be continuingcontinuing at the time that any such Incremental Term Loan is made, (ii) the aggregate principal amount of Incremental Term Loans [reserved], and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) subject to customary “SunGard” provisions in the case of an Incremental Term Loan the proceeds of which shall be used to fund a Limited Condition Acquisition, each of the representations and warranties made by any Loan Party set forth in Article 4 III hereof and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the effective date of the effectiveness of any Incremental Facility Amendment with the same effect as though made on and as of such Incremental Term Loan or Incremental Revolving Credit Commitment (ordate, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects, as the case may be) as of such earlier date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $2,000,000 as the case may be, if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower may, at any time time, on one or from time more occasions pursuant to time after an Incremental Facility Amendment add one or more new tranches of term facilities and/or increase the Closing Dateprincipal amount of the Term Loans (other than the Delayed Draw Term Loans) of any existing Class by requesting new commitments to provide such Term Loans (any such new tranche or increase, by notice an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term 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),
(whereupon ii) except as the Administrative Agent Borrower and any Lender may separately agree, no Lender shall promptly deliver 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) 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 copy to each lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) except as otherwise permitted herein, the terms of any Incremental Term Facility (other than any terms which are applicable Lenders), request (x) one or more increases in only after the Maturity Date of any then-existing tranche of Term Loans) must be substantially consistent with those applicable to any then-existing Term Loans or one or more additional tranches of term loan commitments otherwise reasonably acceptable to the Administrative Agent,
(v) the “Incremental Term Loan Commitments” Effective Yield (and the loans made thereunder, components thereof) applicable to any Incremental Facility may be determined by the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” Borrower and the Revolving Credit Loans made pursuant thereto, the “lender or lenders providing such Incremental Revolving Credit Loans”), Facility; provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (includingthat, in the case of any Incremental Term LoanFacility that is pari passu with the Initial Term Loans in right of payment and with respect to security, after giving effect thereto)the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, no Event of Default minus, 0.50%,
(or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (iivi) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together final maturity date with respect to any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less no earlier than $50,000,000 and each the Latest Term Loan Maturity Date at the time of incurrence thereof,
(vii) the Weighted Average Life to Maturity of any Incremental Revolving Credit Commitment Term Facility shall be in an aggregate principal amount that is not less no shorter than $5,000,000 provided thatthe remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans, as applicable, in each case, such amount right of payment and/or security or may be less than such amount if unsecured (and to the extent the relevant Incremental Facility is pari passu with 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 may be (x) such amount represents all remaining availability under the limit set forth in clause (ii) above guaranteed by any Person which is not a Loan Party or (y) if otherwise agreed to secured by any assets other than the Administrative Agent, Collateral,
(vA) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence any prepayment (other than any scheduled amortization payment) of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank that are pari passu in right of payment and of security with the Revolving Credit any then-existing Term Loans shall be made on a pro rata basis with such existing Term Loans and the Term Loans; (iiB) the any prepayment (other than any scheduled amortization payment) of Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to that are subordinated in right of payment or security with any Term Loan then outstanding; (iii) the Incremental existing Term Loans shall not have be made on a weighted average life junior basis with respect to maturity shorter than the weighted average life to maturity of the such existing Term Loans; (iv) , except that the Borrower and the lenders providing the relevant Incremental Term Loans shall be treated permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a pro rata or less than pro rata basis in (but not on a greater than pro rata basis),
(x) subject to Section 2.19(f), no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility,
(xi) the proceeds of any mandatory Incremental Facility may be used for working capital and voluntary prepayments other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and
(xii) on the date of the existing Term Loans; (v) if the Effective Yield for the Borrowing of any Incremental Term Loans as that will be of the date same Class as any then-existing Class of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only and notwithstanding anything to the extent an increase contrary set forth in the interest rate floor applicable to Sections 2.05 or 2.10 above, such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially added to (and constitute a part of, be of the same terms and conditions (taken Type as a wholeand, at the election of the Borrower, have the same Interest Period as) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date each Borrowing of any existing outstanding Term Loans orof such Class on a pro rata basis (based on the relative sizes of such Borrowings), to the extent such terms (taken as a whole) are more favorable to the lenders so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than those one month) that begin during an Interest Period then applicable to the existing Term Loans, are added for the benefit outstanding Eurodollar Rate Loans of the Lenders relevant Class and which end on the last day of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentsuch Interest Period.
(cb) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender (in its sole discretion), or by any other Eligible Assignee (any such other lender being called an “Additional Lender, ”); provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or the relevant Additional Lender’s making such provision of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 9.05(b) for an assignment of Loans or Commitmentsto such Additional Lender; provided, as applicablefurther, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have 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 from such Additional Lender, (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 (v) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Term Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of Section 2.19 and such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental Amendment may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable Borrower in connection therewith and with the establishment of such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by new Classes or sub-Classes, in each case on terms consistent with this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionSection 2.19.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hf) Notwithstanding anything to the contrary in this AgreementSection 2.19 or any other provision of any Loan Document, this 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 2.24 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 2.19 shall supersede any provisions provision in Sections 2.18 Section 2.15 or 10.01 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower may, at any time time, on one or from time to time after the Closing Date, by notice 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 applicable Lenders), request ) to (xi) add one or more increases in any existing tranche new Classes of Term Facilities and/or increase the principal amount of the Term Loans or one or more additional tranches of under any Term Facility by requesting new term loan commitments to be added to such Term Loans (the any such new Class or increase, an “Incremental Term Loan CommitmentsFacility” and the any loans made thereunderpursuant to an Incremental Term Facility, the “Incremental Term Loans” ”) or and/or (yii) add one or more increases in new Classes of incremental revolving “cash-flow” facilities and/or increase the aggregate amount of the Commitments of any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each any such increase new Class or additional trancheincrease, an “Incremental Revolving Credit CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the Revolving Credit Loans made pursuant theretoloans thereunder, the “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”), ) in an aggregate principal amount not to exceed the Incremental Cap; provided that that:
(i) both no Incremental Commitment may be less than $5,000,000;
(ii) except as separately agreed from time to time between the Borrower 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) no Incremental Facility or Incremental Loan (or 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), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) an Incremental Revolving Facility may have the benefit of a financial maintenance covenant (which shall not be for the benefit of any Term 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 which 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 0.50% 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 0.50%; provided, that this clause (v) shall not apply to any Incremental Term Loans that (y) mature at least two (2) years after the Term Loan Maturity Date or (z) does not exceed an aggregate principal amount, together with all other Incremental Term Facilities then outstanding, of $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 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 any then-existing Class of Term 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 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 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 may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral;
(A) any prepayment (other than any scheduled amortization 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 such request 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 Loans that are First Priority Secured Obligations requiring ratable prepayment), except, in each case that the Borrower and the lenders 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);
(x) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by this Agreement, no Event of Default shall exist immediately prior to or after giving effect to the effectiveness such Incremental Facility;
(xi) except as otherwise required or permitted in this Section 2.22, all other terms of any Incremental Amendment referred Term Facility, if not consistent with the terms of the Initial Term Loans, shall be reasonably satisfactory to below the Borrower and the Administrative Agent (includingit being understood that any terms which are not consistent with the terms of the Initial Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date are deemed to be reasonably acceptable to the Administrative Agent);
(xii) the proceeds of any Incremental Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement;
(xiii) on the date of the making of any Incremental Term Loans that will be added to any existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding 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 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 in the case of any Incremental Term LoanRevolving Facility, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender Borrower shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such Lender’s or the relevant Additional Lender’s making such provision of Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would Commitments; provided, further, that any Additional Lender that is an Affiliated Lender shall be required under subject to the provisions of Section 10.06 for an assignment of Loans or Commitments9.05(h), as applicablemutatis mutandis, to the same extent as if 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 any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower 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 Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to 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, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have 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 from such Additional Lender, (iii) the Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any Incremental Amendment may, without the consent of any other Lenders, effect Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new Classes or appropriatesub-Classes in respect of Loans or commitments increased or extended pursuant to this Section 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 CompanyBorrower in connection with the establishment of such new Classes or sub-Classes, to effect in each case on terms consistent with this Section 2.22.
(f) To the extent the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any 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 Revolving Credit CommitmentsTerm Loans having short Interest Periods (i.e., unless it affirmatively agrees in its sole discretionan 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) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this AgreementSection 2.22 or in any other provision of any Loan Document, this 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 2.24 2.22 shall supersede any provisions provision in Sections Section 2.18 or 10.01 9.02 to the contrary and the Borrower and the Administrative Agent may amend shall, to extent applicable, be subject in all respects to Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment1.10.
Appears in 1 contract
Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Escrow Release Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition or other investment permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or would exist after giving effect thereto,
(B) on the date of the incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (iib); 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 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 A Facility shall have a final maturity date no earlier than the Term A-1 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 U.S. Term B-4 Termination Date then in effect,
(E) the aggregate principal amount Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-1 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 B 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 Commitments that Facility (except with respect to margin, pricing and fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be incurred substantially identical to the Revolving Facility or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant otherwise reasonably acceptable to Section 7.02(y), the Incremental Cap Amount, Administrative Agent,
(iiiH) the representations interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of Additional Lenders providing such Incremental Term Loan Facility or Incremental Revolving Credit Commitment (or, at the option of the CompanyLoans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing U.S. Term B-4 Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Amendment No. 7 Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers (or their affiliates) in their respective capacities as such in connection with the 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to by the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) 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 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 subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent,
(J) no Incremental Facility shall be guaranteed by any Person which is not a Loan Party,
(K) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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 (vbut not on a greater than pro rata basis),
(L) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence of such Incremental Revolving Credit Commitment effect set forth in subclauses (assuming a full drawing thereofA) and the use of proceeds thereof on a Pro Forma Basis the Company would be in (B) above, together with reasonably detailed calculations demonstrating compliance with the Financial Covenants recomputed subclause (B) above (which calculations shall, if made as of the end last day of any fiscal quarter of the most recently ended Test Period; (vi) Borrower for which the Borrower shall deliver 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), (aM) a certificate of each Loan Party dated all fees or other payments owing pursuant to Section 10.13 or as of the date otherwise agreed in writing in respect of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed Commitment Increase to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Additional Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be madebeen paid, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrowers may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders)Agent, request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches and any Class of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment Agreement referred to below (includingbelow, in the case no Default or Event of any Incremental Term Loan, Default shall exist after giving effect thereto), no Event of Default to such Revolving Commitment Increase.
(or in connection with any Limited Condition Transaction no Event of Default under Article 8(ai) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all remaining availability under the limit set forth below) (and in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating minimum increments of $1,000,000 in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing excess thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans aggregate amount of Revolving Commitment Increases hereunder shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds exceed the sum of (A) $75,000,000 and (B) and the Effective Yield then applicable to the Initial Term Loans and 0.50% (the aggregate amount of such excess being referred optional prepayments pursuant to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased Section 2.05(a) that are accompanied by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase permanent reduction in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, Commitments hereunder (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of terminations in connection with any existing Term Loans or, to the extent such terms (taken as “yank a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans bank” provisions pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentSection 2.16).
(c) Incremental The Revolving Commitment Increase shall be treated the same as the Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate a Revolving Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date may be increased and pricing, (including interest rate floors, interest rate margin, original issue discount, additional upfront or similar fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable may be payable to the lenders providing such Incremental the Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentCommitment Increase); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Administrative Borrower pursuant to this Section 2.24 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increase. Incremental Term Loans Revolving Commitment Increases may be made, and Incremental Revolving Credit Commitments may be providedprovided subject to the prior written consent of the Administrative Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender, ”); provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increase if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Commitments, as applicable, and/or Commitments to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental in respect of Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental AmendmentAgreement”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment 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 appropriate, advisable in the reasonable opinion of the Borrowers and the Administrative Agent and the Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Agreement 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 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeIncremental Facility Closing Date. The Borrowers may will use the proceeds of the Incremental Term Loans and Incremental loans under any Revolving Credit Commitments Commitment Increase for any purpose not prohibited by this Agreement. No Lender .
(i) The Borrowers shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionCommitment Increase.
(gii) To Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit 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, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment of such Class (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of such Class of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) ifof such Class. If, on the date of such increase, there are any Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit CommitmentsCommitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence3.04.
(hg) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.02(b) or 10.01 to the contrary and contrary. For the Borrower and avoidance of doubt, any provisions of this Section 2.14 may be amended with the Administrative Agent may amend Section 2.18 solely consent of the Required Lenders; provided no such amendment shall require any Lender to the extent necessary to give effect to the permitted terms and conditions of provide any Incremental AmendmentRevolving Commitment Increase without such Lender’s consent.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) to effect one or more increases in the aggregate amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Commitment Increase”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (i) both at the time of any each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis (before and after giving effect to any such Revolving Commitment Increase and assuming that such Revolving Commitment Increase is fully drawn) with (x) the effectiveness of any Incremental Amendment referred covenants contained in Sections 6.10 and 6.11 and (y) a Senior Secured Leverage Ratio not to below (includingexceed 3.25 to 1.00, in each case as of the case last day of any Incremental Term Loanthe most recently ended Test Period, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(aC) or Article 8(f)) the Borrower shall have occurred delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above and (D) the maturity date of such Revolving Commitment Increase shall be continuingthe Revolving Maturity Date, such Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Revolving Commitment Increases and (ii) the aggregate principal amount of Incremental all Term Loans and Incremental Revolving Credit Commitments that shall be Commitment Increases incurred or that shall become effective after the Effective Date shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), exceed the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Cap. Each Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate a minimum principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that, in each case, that such amount may be less than such amount $5,000,000 if (x) such amount represents all the remaining availability under the limit Incremental Cap.
(b) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedherein, the Borrower shall have delivered may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit “Term Commitment (assuming a full drawing thereof) Increase”, and the use term loans made thereunder, “Incremental Term Loans”) from one or more Additional Term Lenders; provided that at the time of proceeds thereof each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) the conditions set forth in Section 4.02 shall be satisfied, (B) the Borrower shall be in compliance on a Pro Forma Basis the Company would be in compliance (before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase) with the Financial Covenants recomputed covenants contained in Sections 6.10 and 6.11, in each case as of the end last day of the most-recently ended Test Period, (C) the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis before and after giving effect to any Incremental Term Loans made pursuant to such Term Commitment Increase as of the last day of the most recently ended Test Period; , shall not exceed 3.25 to 1.00, (viD) the Borrower shall deliver to the Administrative Agent (a) have delivered a certificate of each Loan Party dated as of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (E) the maturity date of any term loans incurred pursuant to such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increase shall not mature be earlier than the Latest Maturity Date applicable then in effect and the Weighted Average Life to Maturity of any term loans incurred pursuant to such Term Loan then outstanding; (iii) the Incremental Term Loans Commitment Increase shall not have a weighted average life to maturity be no shorter than the weighted average life Weighted Average Life to maturity Maturity of the Term Loans, (F) the interest rate margins and, subject to clause (E), the amortization schedule for any term loans incurred pursuant to such Term Commitment Increase shall be determined by the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; provided that in the event that the All-In Yield of any Term Commitment Increase exceeds the All-In Yield of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less by more than pro rata 50 basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)points, then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to margins for the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such differential between interest rate floors; term loans incurred pursuant to such Term Commitment Increase minus 50 basis points, and (viG) except as otherwise specified in this Section 2.24, any Incremental Term Facility Amendment shall be on the terms and conditions pursuant to documentation to be determined by the Borrower and the Additional Term Lenders with the applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions Commitment Increases; provided that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms and documentation are not consistent with this Agreement (taken as a whole) are more favorable except to the lenders providing such extent permitted by clauses (E) or (F) above), they shall be reasonably satisfactory to the Administrative Agent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Term Commitment Increases and (ii) the aggregate principal amount of all Revolving Commitment Increases after the Effective Date shall not exceed (x) the Incremental Cap plus (y) an additional amount of Term Commitment Increases to the extent that, on a Pro Forma Basis before and after giving effect to any Incremental Term Loans than those applicable made pursuant to the existing any such Term LoansCommitment Increase, are added for the benefit as of the Lenders last day of the existing most recently ended Test Period, the Senior Secured Leverage Ratio shall not exceed 2.50 to 1.00. Each Term Loans pursuant to an amendment to this Agreement executed by Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the Company and remaining availability under the Administrative AgentIncremental Cap.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(di) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitment Increase or Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increase.
(eii) The Incremental Term Loan Commitments and Incremental in respect of any Revolving Credit Commitments Commitment Increase shall become Commitments (or in the case of an Incremental any Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Revolving Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Additional Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) Any or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 2.24(a4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Term Commitment Increase (the “Incremental Term Commitments”) shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, each applicable Additional Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), of the payment of by any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term Loans 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 reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit CommitmentsTerm Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it affirmatively agrees being understood that all references to “the date of such Borrowing” in its sole discretionSection 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(gd) To the extent that the Incremental Upon each Revolving Credit Commitments requested Commitment Increase pursuant to this Section 2.24 consist of increases in the existing Section, each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of the Incremental such Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and 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 with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the percentage date of such Revolving Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the aggregate then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Credit Commitments Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, Loans outstanding on the date of such increase, there are any Revolving Credit Loans outstandingCommitment Increase, such Revolving Credit Loans shall either be prepaid by the Borrower on such date or prior refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Revolving Commitment Increase Lender will make ABR Revolving Loans to the effectiveness Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Incremental Loans of such Type times a percentage obtained by dividing the amount of such Revolving Credit Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be prepaid from applied to the proceeds prepayment of additional outstanding ABR Revolving Credit Loans made hereunder (reflecting held by the Revolving Lenders other than the Revolving Commitment Increase Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Revolving Commitment Increase Lenders, in such increase amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Credit Commitments)Commitment Increase, which prepayment shall be accompanied by the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything Upon each Term Commitment Increase pursuant to this Section, each Additional Term Lender shall make an additional term loan to the contrary Borrower in this Agreement, this a principal amount equal to such Lender’s Term Commitment Increase. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Term Commitment Increase and Revolving Commitment Increase and shall make available to the Lenders a copy of any each Incremental Term Facility Amendment and Incremental Revolving Facility Amendment.
(f) This Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Schiff Nutrition International, Inc.)
Incremental Credit Extensions. (ai) The Company may at At any time or and from time to time after the Closing ClosingFirst Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or to effect one or more additional revolving credit facility tranches of term loan commitments hereunder (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount an increase of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments hereunder) (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Facilities”) from Additional Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), Lenders; provided that (iA) both at the time of any each such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred to below Revolving Facility Amendment, no Default shall have occurred and be continuing or shall result therefrom (includingor, in the case of the incurrence or provision of any Incremental Term Loan, after giving effect thereto)Revolving Facility in connection with a Limited Condition Acquisition, no Specified Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or shall result therefrom), (iiB) the aggregate principal amount Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (A) above and setting forth the applicable clause(s) of the definition of “Incremental Term Loans and Cap” utilized for such Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceedFacility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with any Indebtedness incurred pursuant to Section 7.02(y)such clause (b) (which calculations shall, the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and if made as of the effective date 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 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA or Consolidated Interest Expense, as applicable, for the relevant period), (C) such Incremental Term Loan Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Credit Commitment Facility is secured by junior Liens, the applicable parties shall have entered into the Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (ory) shall not be guaranteed by any Persons other than Loan Parties, at (D) except as set forth in clause (F) below, the option of interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Facility shall be determined by the CompanyBorrower and the Additional Revolving Lenders providing such Incremental Revolving Facility, provided that no Incremental Revolving Facility shall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the Additional Revolving Lenders, (F) in the case of Incremental Term Loans an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the express requirements herein, any Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, Facility Amendment shall be on the date on which terms and pursuant to documentation to be determined by the definitive agreement for Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities; provided that to the extent such acquisition or investment is entered into) terms and documentation are not consistent with this Agreement (except to the extent such representations and warranties are specifically made as of a particular datepermitted by clause (D) or (E) above), in which case such representations and warranties they shall be true and correct in all material respects (except reasonably satisfactory to the Administrative Agent; provided, further, that any representation and warranty that is qualified by materiality no Issuing Bank shall be true required to act as “issuing bank” and correct in all respects) no Swingline Lender shall be required to act as of a “swingline lender” under any such date); (iv) each tranche of Incremental Term Loans Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in an aggregate a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit set forth in clause Incremental Cap.
(ii) above or (y) if otherwise agreed At any time and from time to by time after the Administrative AgentClosingFirst Amendment Effective Date, (v) if an Incremental Revolving Credit Commitment is requestedsubject to the terms and conditions set forth herein, the Borrower shall have delivered may, by notice to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect Administrative
(iii) Notwithstanding anything to the incurrence contrary herein, no Incremental Facility may be established or incurred under this Section 2.18 in an amount that would exceed the Incremental Cap at the time of such establishment or incurrence. Notwithstanding anything herein to the contrary, no existing Lender will be required to participate in any Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors Facility or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit CommitmentsFacility without its consent.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans Revolving Facility or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderFacility.
(eii) The Incremental Term Loan Commitments and in respect of any Incremental Revolving Credit Commitments Facility shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each the applicable Additional Lender, if any, Revolving Lenders and the Administrative Agent.
. Incremental Revolving Facilities may be provided, subject to the prior written consent of the Borrower (fnot to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to participate in any Incremental Revolving Facility) Any or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this SectionSection (including to provide for the issuance of letters of credit and swingline loans thereunder and to provide for the treatment of defaulting lenders). The Subject to Section 1.08, in the case of an Incremental Revolving Facility incurred to finance a Limited Condition Acquisition, the effectiveness of any Incremental Revolving Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a)(each, of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a an “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.Incremental
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may at any time or from time to time after the Closing Amendment No. 3 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit Loans”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount (it being agreed that the Term B-1 Loans shall not be included in the calculation of the usage of the Incremental Cap Amount for purposes of borrowing the Term B-1 Loans on the Amendment No. 1 Effective Date or thereafter, for purposes of calculating the usage of clause (c) of the definition of Incremental Cap Amount), (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term B-2 Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term B-2 Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term B-2 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 such Initial Term B-2 Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; it being understood that (i) Amendment No. 1 constitutes an “Incremental Amendment” with respect to the establishment of the Term B-1 Loan Commitments as “Incremental Term Commitments” and the Term B-1 Loans as “Incremental Term Loans” (subject to the parenthetical in clause (ii) of the proviso to Section 2.24) and (ii) Amendment No. 2 constitutes an “Incremental Amendment” with respect to the establishment of the Incremental Revolving Credit Commitment and the Loans provided thereunder as “Incremental Revolving Credit Loans” (subject to the parenthetical in clause (ii) of the proviso to Section 2.24).
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
, (i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Parent Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental exist. Each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 10,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as aggregate amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; exceed $100,000,000 (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as amount, the “Term Loan Yield DifferentialIncremental Amount”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) . Each notice from the Company Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans Revolving Commitment Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent andAgent, with respect to Incremental Revolving Credit Commitments, the Swing Line Lender and each Issuing Lender L/C Issuer shall have consented (each such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan . Commitments and Incremental in respect of Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyParent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Any Revolving Commitment Increase shall be on the same terms (fincluding, without limitation, with respect to pricing) Any and treated the same as the existing Facility (including, without limitation, with respect to maturity date thereof) and shall be considered to be part of the Facility, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. The Incremental Amendment may, without the consent of any other LendersLenders or Loan Parties, 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 CompanyParent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Parent Borrower shall use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees Upon each increase in its sole discretion.
(gA) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.14, (x) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (iiy) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (iHeartMedia, Inc.)
Incremental Credit Extensions. (a) The Company may at At any time or and from time to time after the Closing Escrow Release Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the applicable Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (xi) one or more increases in any existing tranche of Term Loans or one (1) or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) facilities hereunder or (y) one or more increases in the 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 and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Revolving Credit Commitment Increase” and together with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Commitment” and the Facility, a “Commitment Increase”) from Additional Revolving Credit Loans made pursuant theretoLenders; provided that, the “Incremental Revolving Credit Loans”)unless otherwise provided below, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any each Incremental Amendment referred Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to below (including, in the case of any Incremental Term Loan, after giving effect thereto)finance an Acquisition or other investment permitted under this Agreement, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuingcontinuing or would exist after giving effect thereto,
(B) on the date of the incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (iib); 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 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 A Facility shall have a final maturity date no earlier than the Term A-1 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 U.S. Term B-3 Termination Date then in effect,
(E) the aggregate principal amount Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-1 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 B 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 Commitments that Facility (except with respect to margin, pricing and fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be incurred substantially identical to the Revolving Facility or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant otherwise reasonably acceptable to Section 7.02(y), the Incremental Cap Amount, Administrative Agent,
(iiiH) the representations interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of Additional Lenders providing such Incremental Term Loan Facility or Incremental Revolving Credit Commitment (or, at the option of the CompanyLoans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Revolving Credit Commitments incurred Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to finance a Limited Condition Transactionsecurity with any then existing U.S. Term B-3 Loans (the “Relevant Existing Facility”), on such interest rate will not be more than 0.50% higher than the date on which the definitive agreement for such acquisition or investment is entered into) (except corresponding interest rate applicable to the extent Relevant Existing Facility unless the interest rate with respect to 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 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such representations and warranties are specifically made as of Incremental Term Facility or Incremental Term Loans (based on a particular datefour-year average life to maturity), in which case such representations and warranties shall be true and correct included, (x) any amendments to or changes in all material respects the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Amendment No. 7 Effective Date but prior to the time of (except that any representation and warranty that is qualified by materiality shall be true and correct in all respectsor concurrently with) as the addition of such date); (iv) each tranche of Incremental Term Facility or Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatincluded, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers (or their affiliates) in their respective capacities as such in connection with the 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 otherwise agreed such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to by the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) 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 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 subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent,
(J) no Incremental Facility shall be guaranteed by any Person which is not a Loan Party,
(K) 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 such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the 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 (vbut not on a greater than pro rata basis),
(L) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect of a financial officer certifying to the incurrence of such Incremental Revolving Credit Commitment effect set forth in subclauses (assuming a full drawing thereofA) and the use of proceeds thereof on a Pro Forma Basis the Company would be in (B) above, together with reasonably detailed calculations demonstrating compliance with the Financial Covenants recomputed subclause (B) above (which calculations shall, if made as of the end last day of any fiscal quarter of the most recently ended Test Period; (vi) Borrower for which the Borrower shall deliver 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), (aM) a certificate of each Loan Party dated all fees or other payments owing pursuant to Section 10.13 or as of the date otherwise agreed in writing in respect of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed Commitment Increase to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Additional Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be madebeen paid, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 Company, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders)Agent, request (xi) one or more increases in additional Classes of term loans hereunder or additional term loans of the same Class of any existing tranche of Term Loans or one or more additional tranches Class of term loan commitments loans hereunder (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or and/or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments hereunder (each such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentCommitment Increase” and and, together with the Revolving Credit Loans made pursuant theretoIncremental Term Loans, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both subject to Section 1.06, at the time of that any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, Loan or Incremental Revolving Commitment Increase is made or effected (and also immediately after giving effect thereto), (A) (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or y) in connection with any the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition Transaction in which an LCT Election has been made, no Event of Default under Article 8(aSection 7.01(a), (b), (h) or Article 8(f)(i) shall have occurred and be continuing, (ii) continuing at the aggregate principal amount of time that any such Incremental Term Loans Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Revolving Credit Commitments that Term Loan the proceeds of which shall be incurred or that shall become effective shall not exceedused to fund a Limited Condition Transaction in which an LCT Election has been made, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) each of the representations and warranties made by any Loan Party set forth in Article 4 III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the effective date of the effectiveness of any Incremental Facility Amendment with the same effect as though made on and as of such Incremental Term Loan or Incremental Revolving Credit Commitment (ordate, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct or in all respects, as the case may be) as of such earlier date); . 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 (ivx) each tranche $5,000,000 in the case of Incremental Term Loans shall be Loans, or (y) $2,000,000 in an aggregate principal amount that is not less than $50,000,000 and each the case of Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided thatIncreases and, in each either case, integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than such amount either of the foregoing amounts if (x) either such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall rank pari passu equal in right of payment and of security with the Revolving Credit Loans and the Term Loans; , shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (iib) the except with respect to an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not mature earlier than the Latest Term Maturity Date applicable Date, (c) except with respect to any Term Loan then outstanding; (iii) the an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining Term Loans; , (ivd) the Incremental Term Loans shall be treated on have a pro rata or less than pro rata basis in any mandatory maturity date (subject to preceding clause (b)), and voluntary prepayments of the existing Term Loans; interest rates (v) if the Effective Yield 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 Borrower and the Additional Term Lenders thereunder; provided that, except with respect to (A) an aggregate principal amount of the date of incurrence of such Incremental Term Loans exceeds not greater than the sum of Fixed Incremental Amount, (B) any Incremental Term Loans used to finance a Permitted Acquisition or other similar permitted Investment or (C) any Incremental Term Loans that mature more than one (1) year after the Term Maturity Date, in the event that the Effective Yield then applicable to for any Incremental Term Loans incurred during the first twelve (12) months after the Closing Date is greater than the Effective Yield for the Initial Term Loans and 0.50by more than 0.7550% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”)per annum, then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to for the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such 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 the Incremental Term Loans minus 0.7550% 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 Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (e) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Term Lenders of such differential between interest rate floorsIncremental Term Loans elect to receive a lesser share of any such prepayment); and (vif) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except as otherwise specified in this Section 2.24with respect to matters contemplated by clauses (a), (b), (c), (d) and (e) above but subject to clause (c) below, the terms and conditions applicable to of any such Incremental Term Loans or any Incremental Revolving Commitment Increase, as applicable, shall not be on substantially materially more restrictive to Holdings, the same terms Borrower and conditions (its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than the terms of the Initial Term Loans or Revolving Loans, as applicable, unless (1) as such term is also added for the benefit of any corresponding existing Term Loans or Revolving Loans, other than (x) maturity dateas applicable, pricingwithout the consent of the Administrative Agent or any Lender being required, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection2) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable any such provisions apply after the Latest Maturity Date at the time of any existing Term Loans or, to the extent incurrence of such Incremental Facility or (3) such terms (taken as a whole) are more favorable shall be reasonably satisfactory to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) The Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments Commitment Increase shall be on treated the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) including with respect to maturity date thereof) and shall be considered to be part of the Revolving Loans and Revolving Commitments (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, (including interest rate floors, interest rate marginmargins, original issue discount, rate floors and undrawn commitment fees on the Revolving Commitments may be increased and additional upfront or similar fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable may be payable to the lenders providing such the Incremental Revolving Credit Commitments than those applicable Commitment Increase (without any requirement to the pay such fees to any existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentLenders); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments).
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderCommitment Increases.
(e) The Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, 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 Borrower (fnot to be unreasonably withheld), 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 provide any Loans pursuant thereto) Any or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the extent applicable). The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No .
(f) Incremental Facilities may be provided by any existing Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees (in its sole discretion), or, subject to (i) the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant person and (ii) in the case of any Incremental Revolving Commitment Increase, each Issuing Bank and the Swing Line Lender, if such consent would be required under Section 9.04 for assignments of Revolving Loans and Revolving Commitments to the relevant Person.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to Each Additional Lender shall become a Lender for all purposes in connection with this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceAgreement.
(h) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the Borrower) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20.
(i) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Company may Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Facility (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”); provided, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), (A) no Default or Event of Default shall exist and (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (iiB) the aggregate principal amount Borrower shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25 million (provided, that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25 million if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) the next sentence); provided that in connection with a Limited Condition Acquisition, if otherwise agreed to by the Administrative AgentLenders providing such Incremental Facility, the representations and warranties made by the Borrower shall be limited to customary “specified representations” and those representations of the seller or the target company (vas applicable) if an included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and that give the applicable parties the ability to terminate such acquisition agreement; (B) no Default shall have occurred and be continuing or be caused by the Revolving Commitment Increase or incurrence of the Incremental Revolving Credit Commitment Term Loan (provided that solely with respect to Incremental Term Loans incurred in connection with a Limited Condition Acquisition, to the extent the Lenders participating in such tranche of Incremental Term Loans agree, no Default shall exist at the time of the execution of the definitive documentation for such Limited Condition Acquisition and no Default under Section 8.01(a) or Event of Default under Sections 8.01(f) shall exist at the time such Limited Condition Acquisition is requestedconsummated) and (C) subject to the terms of Section 1.08(f) in respect of Limited Condition Acquisitions, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as financial covenant set forth in Section 7.09 for the applicable Test Period (determined on a pro forma basis after giving effect to such incurrence of the end Incremental Facility and any related prepayment of the most recently ended Test Period; (vi) the Borrower shall deliver Indebtedness). Notwithstanding anything to the Administrative Agent (a) a certificate contrary herein, the aggregate amount of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under 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 Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Extended Revolving Credit Commitments and pursuant to Section 2.16) shall not exceed the Maximum Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit CommitmentsFacilities Amount.
(ib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (i) shall have the same guarantees as, and rank pari passu or junior in right of payment and of security with with, the Revolving Credit Loans and, the Term B Loans and the Term Loans; B-1 Loans (provided, that any junior Liens on the Collateral incurred pursuant to any such Incremental Term Loans shall be subject to a Second Lien Intercreditor Agreement), (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any the Term Loan then outstanding; B Loans or Term B-1 Loans, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term B Loans or Term B-1 Loans, (iv) shall 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 Term B Loans or Term B-1 Loans, and (v) shall bear interest at rates and be entitled to upfront fees as shall be determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for any Incremental Term Loans shall exceed the All-In Yield with respect to the then-outstanding TermTerm B Loans or Term B-1 Loans by more than 50 basis points, then the interest rate margins applicable to such Class of Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower; provided that, to the extent such terms and documentation are not have a weighted average life consistent with the Term B Facility or Term B-1 Facility (except to maturity shorter than the weighted average life extent permitted by clauses (i) through (v) above), they shall be reasonably satisfactory to maturity the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, 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 any corresponding existing Term Loans; ) and subject to clauses (ivii) and (iii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, Borrower and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentthereof.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender”); provided, provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment mayshall, without the consent of any other the Agents or the 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 Company, Borrower to effect the provisions of this SectionSection 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 applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable (unless specified in the applicable Incremental Amendment to form an increase in any previously established Class of Term Loans). The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other further conditions as the parties thereto Borrower and the applicable Lenders and Additional Lenders shall agree. The Borrowers Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment.this
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
Incremental Credit Extensions. (a) The Company may at any time or from From time to time on or after the Closing ClosingAmendment No. 5 Effective Date, by subject to the terms and conditions set forth herein, the Borrower may, upon ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or to add one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional tranche, an the “Incremental Revolving Credit Commitment” and Commitments”; together with the Revolving Credit Loans made pursuant theretoIncremental Term Loans, the “Incremental Revolving Credit LoansFacilities”), provided that (i) both at the time of any such request and after giving effect to the effectiveness of any each Incremental Facility Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), i) no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have has occurred and be continuingis continuing or shall result therefrom, (ii) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the covenants set forth in ARTICLE VI as of the last day of the most recently ended fiscal quarter of the Borrower after giving effect to such Incremental Revolving Commitments (assuming for such purpose that such Incremental Revolving Commitments are fully drawn at such time) or Incremental Term Loans, as applicable, (iii) each of the conditions set forth in Section 3.2 shall have been satisfied and (iv) the Administrative Agent shall have received from the Borrower such legal opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Term Loans Facilities on and after the ClosingAmendment No. 5 Effective Date shall not exceed the sum of $250,000,000. Each Incremental Revolving Credit Commitments that Facility shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations in an integral multiple of $5,000,000 and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each 10,000,000 in case of Incremental Term Loans or $10,000,000 in case of Incremental Revolving Credit Commitment shall be in an aggregate principal amount Commitments, provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such the applicable minimum amount if (x) such amount represents all the remaining availability under the limit hereunder as set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent agrees in writing to a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such lesser minimum amount. Each Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans Facility shall rank pari passu in right of payment payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of security with the Revolving Credit other Obligations hereunder.
(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 Loans; Loan A-34 and (ii) the Incremental Term Loans other than amortization, pricing or maturity date, shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) Term Loan A-34 or such other terms as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, reasonably satisfactory to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no (A) any Incremental Revolving Credit Commitment Term Loan shall not have a final maturity date earlier than the then existing Latest Maturity Date and (B) 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 then-remaining Term Loan A-34.
(c) Any Incremental Revolving Commitment shall be on the same terms and conditions as, and pursuant to the same documentation as applicable to, the Revolving Commitments; provided that the maturity date of such Incremental Revolving Commitment shall be no earlier than the Revolving Commitment Termination Date. From and after the making of an Incremental Term Loan or the addition of any Incremental Revolving Commitments pursuant to this Section, such Incremental Term Loan and such revolving loan funded pursuant to an Incremental Revolving Commitment shall be deemed a “Loan”, “Term Loan” and/or “Revolving Loan”, as applicable, hereunder for all purposes hereof, and, except as set forth in clause (b) immediately above with respect to Incremental Term Loans, shall be subject to the same terms and conditions as each other Term Loan or Revolving Credit CommitmentsLoan made pursuant to this Agreement.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or and/or Incremental Revolving Credit Commitments. Each Lender shall have the right for a period of ten (10) days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to provide the requested Incremental Term Loans Facility by a principal amount equal to its Pro Rata Share of such Incremental Facility. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to provide such Incremental Facility. If any Lender shall elect not to provide such Incremental Facility pursuant to this Section 2.24, the Borrower may be madedesignate any other bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), which agrees to provide such Incremental Facility (any such other bank or other financial institution being called an “Additional Lender”) and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by in the case of any Additional Lender, agrees to become a party to this Agreement, provided that the Issuing Bank (in the case of an increase through an Incremental Revolving Commitment) and the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment if such consent would be required under Section 10.06 10.4(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan Commitments and Incremental Revolving Credit Commitments . Any Additional Lender shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing a Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders and/or any existing Lender who has elected to provide any Incremental Term Loans or increase its Revolving Commitment with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or 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 this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the CompanyAgent, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to Upon each increase in the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
Section, (ia) each Lender with holding a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with holding a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment its Pro Rata Share 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 increase of the Revolving Credit Commitment Commitments be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.212.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h. This Section 2.24(d) Notwithstanding anything to the contrary in this Agreement, this Section 2.24 shall supersede any provisions in Sections 2.18 or 10.01 Section 2.21(a) and Section 10.2 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company may Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments loans (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ”) or (yii) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments any Facility (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”); provided, provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in and at the case of time that any such Incremental Term Loan, Loan is made (and after giving effect thereto), (A) no Default or Event of Default shall exist and (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (iiB) the aggregate principal amount Borrower shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and Incremental each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 25 million (provided, that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $25 million if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) the next sentence); provided that in connection with a Limited Condition Acquisition, if otherwise agreed to by the Administrative AgentLenders providing such Incremental Facility, the representations and warranties made by the Borrower shall be limited to customary “specified representations” and those representations of the seller or the target company (vas applicable) if an included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and that give the applicable parties the ability to terminate such acquisition agreement; (B) no Default shall have occurred and be continuing or be caused by the Revolving Commitment Increase or incurrence of the Incremental Revolving Credit Commitment Term Loan (provided that solely with respect to Incremental Term Loans incurred in connection with a Limited Condition Acquisition, to the extent the Lenders participating in such tranche of Incremental Term Loans agree, no Default shall exist at the time of the execution of the definitive documentation for such Limited Condition Acquisition and no Default under Section 8.01(a) or Event of Default under Sections 8.01(f) shall exist at the time such Limited Condition Acquisition is requestedconsummated) and (C) subject to the terms of Section 1.08(f) in respect of Limited Condition Acquisitions, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as financial covenant set forth in Section 7.09 for the applicable Test Period (determined on a pro forma basis after giving effect to such incurrence of the end Incremental Facility and any related prepayment of the most recently ended Test Period; (vi) the Borrower shall deliver Indebtedness). Notwithstanding anything to the Administrative Agent (a) a certificate contrary herein, the aggregate amount of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under 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 Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Extended Revolving Credit Commitments and pursuant to Section 2.16) shall not exceed the Maximum Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit CommitmentsFacilities Amount.
(ib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (i) shall have the same guarantees as, and rank pari passu or junior in right of payment and of security with with, the Revolving Credit Loans and the Term Loans; B-1 Loans (provided, that any junior Liens on the Collateral incurred pursuant to any such Incremental Term Loans shall be subject to a Second Lien Intercreditor Agreement), (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable with respect to any the Term Loan then outstanding; B-1 Loans, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term B-1 Loans, (iv) shall 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 Term B-1 Loans, and (v) shall bear interest at rates and be entitled to upfront fees as shall be determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for any Incremental Term Loans shall exceed the All-In Yield with respect to the Term B-1 Loans by more than 50 basis points, then the interest rate margins applicable to such Class of Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower; provided that, to the extent such terms and documentation are not have a weighted average life consistent with the Term B-1 Facility (except to maturity shorter than the weighted average life extent permitted by clauses (i) through (v) above), they shall be reasonably satisfactory to maturity the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, 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 any corresponding existing Term Loans; ) and subject to clauses (ivii) and (iii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased determined by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, Borrower and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agentthereof.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company Borrower pursuant to this Section 2.24 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments 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 being called an “Additional Lender”); provided, provided that the Administrative Agent and, with respect to Incremental Revolving Credit CommitmentsAgent, each Issuing Swing Line Lender and each L/C Issuer shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . The Incremental Amendment mayshall, without the consent of any other the Agents or the 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 Company, Borrower to effect the provisions of this SectionSection 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 applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable (unless specified in the applicable Incremental Amendment to form an increase in any previously established Class of Term Loans). The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other further conditions as the parties thereto Borrower and the applicable Lenders and Additional Lenders shall agree. The Borrowers Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases, unless it affirmatively agrees in its sole discretionso agrees.
(gd) To Upon each increase in the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.14, (a) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s 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 Credit Commitment Increase be prepaid from the proceeds of additional 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 increase in Revolving 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 Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(he) Notwithstanding anything [Reserved].
(f) The 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 reflect any Incremental Term Loans provided on a “certain funds” basis) and (ii) reaffirmation agreements and/or such amendments to the contrary Collateral Documents as may be reasonably requested by the Administrative Agent in this Agreement, this order to ensure that such Incremental Term Loans or Incremental Credit Increase is provided with the benefit of the applicable Loan Documents.
(g) This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Parent Borrower may at any time or from time to time after the A&R Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (ya) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each such increase or additional trancheincrease, an a “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansCommitment Increase”), ; provided that (i) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto)below, no Default or Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental exist. Each Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans Increase shall be in an aggregate principal amount that is not less than an amount of $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount 100,000,000 (provided that is not less than $5,000,000 provided that, in each case, such amount may be less than such an amount of $100,000,000 if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed the next sentence). Notwithstanding anything to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requestedcontrary herein, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as aggregate amount of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans Commitment Increases shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; exceed $750,000,000 (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as amount, the “Term Loan Yield DifferentialIncremental Amount”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) . Each notice from the Company Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitment Increases. Incremental Term Loans Revolving Commitment Increases may be made, and Incremental Revolving Credit Commitments may be provided, provided by any existing Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments Commitment Increases if such consent would be required under Section 10.06 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender.
(e) The Incremental Term Loan . Commitments and Incremental in respect of Revolving Credit Commitments Commitment Increases shall become Commitments (or in the case of an Incremental a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyParent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
. Any Revolving Commitment Increase shall be on the same terms (fincluding, without limitation, with respect to pricing) Any and treated the same as the existing Facility (including, without limitation, with respect to maturity date thereof) and shall be considered to be part of the Facility, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. The Incremental Amendment may, without the consent of any other LendersLenders or Loan Parties, 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 CompanyParent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24(a), 4.03 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.03 shall be deemed to refer to the payment effective date of any fees payable in connection therewith such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers may Parent Borrower shall use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated ; provided that to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental proceeds of Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes. Upon each increase in (A) the Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing 2.14, (x) each Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each a “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase), and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender with a Revolving Credit Commitment Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (iiy) 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 Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.213.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hb) Notwithstanding anything to the contrary in this Agreement, this This Section 2.24 2.14 shall supersede any provisions in Sections 2.18 Section 2.13 or 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Company may Lead Borrower may, at any time time, on one or from time to time after the Closing Date, by notice 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 applicable Lenders), request (x) one or more increases in pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing tranche Class of Term Loans or one or more additional tranches of term loan commitments (the “Incremental Term Loan Commitments” and the loans made thereunder, the “Incremental Term Loans” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each any such increase or additional trancheincrease, an “Incremental Revolving Credit CommitmentFacility” and the Revolving Credit Loans made pursuant theretoloans thereunder, the “Incremental Revolving Credit Loans”), ) in an aggregate principal amount not to exceed the Incremental Cap; provided that that:
(i) both at no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the time Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any such request existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental 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 Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental 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 Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and such Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, Facility and (iiiB) the representations and warranties of the Loan Parties set forth in Article 4 this Agreement and the other Loan Documents shall be true and correct in all material respects (except 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 that is qualified by materiality shall be true and correct in all respects) on and as of the effective specifically refers to a given date of such Incremental Term Loan or Incremental Revolving Credit Commitment (orperiod, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties it shall be true and correct in all material respects (except as of such date or for such period; provided, further, that any representation and or warranty that is qualified by materiality as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of any qualification therein) in all respects on such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; respective dates;
(vi) the Borrower proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall deliver there be more than three separate Maturity Dates in effect with respect to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying Incremental Revolving Facilities and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and any other Additional Revolving Facility at any time.
(b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall Commitments may be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.
(i) The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans; (ii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; (iv) the Incremental Term Loans shall be treated on a pro rata or less than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased provided by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.24, the terms and conditions applicable to Incremental Term Loans shall be on substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans orLender, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed or by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments any other lender (other than (xany Disqualified Institution) maturity date and pricing, who would be permitted to become a Lender (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), any required consents) under Section 9.05(b) (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing such other lender being called an “Additional Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative AgentLender”); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(d) Each notice from the Company pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each and any Issuing Lender Bank shall have consented (such consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) to such the relevant Additional Revolving Lender’s or Additional Lender’s making such Incremental Term Loans or providing such provision of Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 9.05(b) for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Revolving Lender.
(ec) The Incremental Term Loan Commitments and Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Credit Commitments Commitment shall become Commitments (or in the case of an Incremental Revolving Credit Commitment execute and deliver to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any 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 CompanyLead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to effect the provisions of this Section. The effectiveness of any Incremental Amendment 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, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be subject paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the satisfaction on extent applicable, certifying that the date thereof of each of the conditions condition set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretionclause (a)(v) above has been satisfied.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Each Lender with a Revolving Credit Commitment of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the relevant Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such relevant Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline 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’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held by each Lender with on a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal pro rata basis on the percentage basis of their respective Commitments of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit applicable class (after giving effect to any increase in the 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 Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitmentsthe Commitment pursuant to this Section 2.22), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ; it being prepaid understood and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the 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 sentencethis clause (e).
(hf) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents 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 pursuant to this Section 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 in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this AgreementSection 2.22 or in any other provision of any Loan Document, this 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 2.24 2.22 shall supersede any provisions provision in Sections Section 2.18 or 10.01 9.02 to the contrary and the Borrower and the Administrative Agent may amend shall, to extent applicable, be subject in all respects to Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendment1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Company Borrower may at any time or from time to time on one or more occasions after the Closing Effective Date, by written notice delivered to the Term Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (xi) one or more increases in any existing tranche additional Classes of term loans (each, an “Incremental Term Loans or Facility”), (ii) one or more additional tranches term loans of the same Class of any existing Class of term loan commitments loans (the each, an “Incremental Term Loan CommitmentsIncrease”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and the loans made thereunderand, together with each such tranche thereafter, the “Incremental Term Loans” Revolving Facilities”) or (yiv) one or more increases in the amount of the any existing Class of Incremental Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments Loans (each such increase or additional trancheeach, an “Incremental Revolving Credit Commitment” Increase”, and the together with any Incremental Term Facility, Incremental Term Increase and Incremental Revolving Credit Loans made pursuant theretoFacilities, the “Incremental Revolving Credit LoansFacilities”); provided that, provided that (i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan or Incremental Revolving Loan is made or effected, (includingx) no Event of Default (except, in the case of the incurrence or provision of any Incremental Term LoanFacility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, after giving effect thereto), no for which a Specified Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)shall be the standard) shall have occurred and be continuing, continuing and (iiy) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the all representations and warranties in Article 4 III shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment Facility (or, at the option of the Companyexcept, in the case of the incurrence or provision of any Incremental Term Loans Facility in connection with a Permitted Acquisition or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transactionother Investment not prohibited by the terms of this Agreement, on the date on for which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche . Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in an aggregate a minimum principal amount of $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 is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount $10,000,000 if (x) such amount represents all the remaining availability under the limit aggregate principal amount of Incremental Facilities set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment (assuming a full drawing thereof) and the use of proceeds thereof on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as of the end of the most recently ended Test Period; (vi) the Borrower shall deliver to the Administrative Agent (a) a certificate of each Loan Party dated as of the date of such increase signed by an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and (b) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each lender under the Incremental Term Loans or Incremental Revolving Credit Commitment, as applicable, on the date thereof, dated as of the effective date of such increase and (vii) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect at any time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitmentsabove.
(ib) The Incremental Term Loans (a) shall (i) rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans; , (ii) if secured, be secured only by the Incremental Term Loans Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Latest Term Maturity Date applicable to any Term Loan then outstanding; Date, (iiic) the Incremental Term Loans shall not have a weighted average life shorter Weighted Average Life to maturity shorter Maturity than the weighted average life to maturity of the existing remaining 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, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; (iv) the provided that, for any Incremental Term Loans shall be treated that rank equal in right of payment with the Term Loans and are secured on a pro rata or less pari passu basis with the Collateral securing the Loan Document Obligations incurred prior to the date that is six months after the Effective Date, in the event that the Effective Yield for any such Incremental Term Loans is greater than pro rata basis in any mandatory and voluntary prepayments of the existing Term Loans; (v) if the Effective Yield for the Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of by more than 0.50% per annum, then the Effective Yield then applicable to for the Initial Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such differential between interest rate floors; and Incremental Term Loans minus 0.50% per annum (vi) except as otherwise specified in this Section 2.24, provided that the terms and conditions “LIBOR floor” applicable to Incremental the outstanding Term Loans shall be on substantially increased to an amount not to exceed the same “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 conditions different from those of the Term Loans (taken as a wholeincluding currency denomination); provided that (x) as to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans, other than Loans (x) maturity date, pricingexcept with respect to matters contemplated by clauses (b), (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protectionc) and amortization(d) above) the terms, conditions and documentation of any such Incremental Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility or Incremental Term Increase, subject to the restrictions and exceptions set forth above.
(yc) immaterial The Incremental Revolving Facilities shall be on terms and (z) terms documentation as determined by the Borrower and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to Revolving Facility; provided that any Incremental Revolving Facility (a) shall (i) rank equal or junior in right of payment with the existing Term Loans, are added (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 provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the benefit ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not 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 Lenders of the existing Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to an amendment to this Agreement executed documentation as determined by the Company Borrower and the Administrative AgentAdditional Revolving Lenders providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(cd) The Incremental Revolving Credit Commitments consisting 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, if required to consummate an Incremental Revolving Increase, the 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 additional tranche upfront or similar fees may be payable to the Lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Lender of revolving loans and commitments Incremental Revolving Loans)). Any Incremental Revolving Increase shall be on the same terms and conditions as pursuant to the Initial same documentation applicable to the Incremental Revolving Credit Commitments Loans (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, excluding upfront fees and call protectioncustomary arranger fees), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
(de) Each notice from the Company Borrower pursuant to this Section 2.24 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the Administrative Agent and, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional LenderLoans.
(ef) The Commitments in respect of any Incremental Term Loan Commitments and Increase or Incremental Revolving Credit Commitments Increase shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrower, each Lender 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 prior written consent of the Borrower (fnot to be unreasonably withheld), 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 provide any Incremental Term Loans or Incremental Revolving Loans) Any or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Term Administrative Agent and the CompanyBorrower, to effect the provisions of this SectionSection 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 on the date thereof of each of the conditions set forth in Section 2.24(a), of the payment of any fees payable in connection therewith and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Borrowers may Borrower will use the proceeds of the Incremental Term Loans and or Incremental Revolving Credit Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it affirmatively agrees in its sole discretion.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(h) Notwithstanding anything to the contrary in this Agreementcontrary, this Section 2.24 2.20 shall supersede any provisions in Sections Section 2.18 or 10.01 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.18 solely to the extent necessary to give effect to the permitted terms and conditions of any Incremental Amendmentcontrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Installed Building Products, Inc.)
Incremental Credit Extensions. (a) The Company may Borrowers may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the applicable Lenders), request (x) one or more increases in any existing tranche of Term Loans or one or more additional tranches of term loan loans (the commitments (thereof, the “Incremental Term Loan Commitments,” and the loans made thereunder, the “Incremental Term Loans,” ) or (y) one or more increases in the amount of the Revolving Credit Commitments and/or additional tranches of Revolving Credit Commitments (each and a Lender making such increase or additional trancheloans, an “Incremental Revolving Credit Commitment” and the Revolving Credit Loans made pursuant thereto, the “Incremental Revolving Credit LoansTerm Lender”), ; provided that that:
(i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Event of Default (or in connection with any Limited Condition Transaction no Event of Default under Article 8(a) or Article 8(f)) shall have occurred and be continuing, (ii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments that shall be incurred or that shall become effective shall not exceed, together with any Indebtedness incurred pursuant to Section 7.02(y), the Incremental Cap Amount, (iii) the representations and warranties in Article 4 shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the effective date of such Incremental Term Loan or Incremental Revolving Credit Commitment (or, at the option of the Company, in the case of Incremental Term Loans or Incremental Revolving Credit Commitments incurred to finance a Limited Condition Transaction, on the date on which the definitive agreement for such acquisition or investment is entered into) (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such date); (iv) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 provided that, in each case, such amount may be less than such amount if (x) such amount represents all remaining availability under the limit set forth in clause (ii) above or (y) if otherwise agreed to by the Administrative Agent, (v) if an Incremental Revolving Credit Commitment is requested, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail that after giving effect to the incurrence of such Incremental Revolving Credit Commitment Term Loans, the aggregate amount of Incremental Term Loans shall not exceed an amount equal to the sumof (assuming a full drawing thereofx) and $25,000,000 less the use aggregate amount of proceeds thereof Indebtedness incurred in reliance on a Pro Forma Basis the Company would be in compliance with the Financial Covenants recomputed as clause (a)(x) of the end definition of “Permitted Incremental Indebtedness” (provided that, for the most recently ended Test Period; (vi) avoidance of doubt, the Borrower shall deliver amount available to the Administrative Agent Borrowers pursuant to this clause (ax) a certificate of each Loan Party dated as of the date of such increase signed by shall be available at all times and shall not be subject to any ratio test) plus (y) an authorized officer of such Loan Party certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such increase and unlimited amount at any time so long as, with respect to this clause (by) customary opinions of legal counsel only, after giving effect to the Loan Parties, addressed to the Administrative Agent and each lender under incurrence of the Incremental Term Loans or and any Permitted Incremental Revolving Credit Commitment, as applicable, Indebtedness (assuming such amounts are secured by a pari passu Lien on the date thereof, dated as Collateral whether or not so secured) and the Fair Market Value of the effective date Collateral to be purchased therewith, the Loan To Value Ratio — Additional Indebtedness is less than the lesser of such increase (x) 0.70 to 1.0 and (viiy) there shall be not more than two separate tranches of Revolving Credit Commitments and Incremental Revolving Credit Commitments in effect 1.1 times the Loan To Value Ratio — Actual at any such time, excluding Incremental Revolving Credit Commitments with identical terms to the Initial Revolving Credit Commitments.;
(iii) The the Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit other Loans and Commitments hereunder; provided, however, that (i) any Incremental Term Commitments or Incremental Term Loans may provide for the prepayment of such Incremental Term Loans; Loans from Segregated Cash Collateral pursuant to the 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 the benefit of Segregated Cash Collateral shall be subject to Section 2.23.
(iii) the Incremental Term Loans shall not mature earlier than the Latest Maturity Date applicable to any Term Loan then outstanding; (iii) the Incremental Term Loans shall not have a weighted average life to maturity shorter than the weighted average life to maturity of the existing Term Loans; Maturity Date;
(iv) the Incremental Term Loans shall be treated on have a pro rata or less Weighted Average Life to Maturity no shorter than pro rata basis in any mandatory and voluntary prepayments the Weighted Average Life to Maturity of the existing Term Loans; ;
(v) the interest rates (including floors), yields, premiums, fees and discounts, and, subject to clauses (iii) and (iv) above, the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrowers and the applicable Incremental Term Lenders;
(vi) no Default or Event of Default 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 made thereunder); and
(vii) with respect to any Incremental Amendment, if the Effective Yield 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 Term Loan, with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the 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 (after giving effect to interest rate margins (including the Eurodollar Base Rate and ABR floors), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (which shall be deemed to constitute like amount of the date of incurrence of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans exceeds the sum of the Effective Yield then applicable Loan, which shall not be included and equated to the Initial interest rate) with respect to the existing Term Loans and 0.50% by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term Loan Incremental Yield Differential”), then then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans shall automatically be increased by the Term Loan Incremental Yield Differential, effective upon the making of the Incremental Term Loans, provided that any differential .
(b) Except as set forth in Effective Yield on account of a differential in interest rate floors shall be required only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors; and (vi) except as otherwise specified in this Section 2.242.19(a), the terms and conditions applicable to Incremental Term Loans shall be on treated substantially the same terms and conditions (taken as a whole) as the existing Term Loans, other than (x) maturity date, pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection) and amortization, (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Term Loans or, to the extent such terms (taken as a whole) are more favorable to the lenders providing such Incremental Term Loans than those applicable to the existing Term Loans, are added for the benefit of the Lenders of the existing Term Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent.
(c) Incremental Revolving Credit Commitments consisting of an additional tranche of revolving loans and commitments shall be on the same terms and conditions as the Initial Revolving Credit Commitments (other than (x) maturity date and pricing, (including interest rate floors, interest rate margin, original issue discount, upfront fees and call protection), (y) immaterial terms and (z) terms and conditions that are either only applicable after the Latest Maturity Date of any existing Revolving Credit Loans or, to the extent such terms are more favorable to the lenders providing such Incremental Revolving Credit Commitments than those applicable to the existing Revolving Credit Commitments, are added for the benefit of the Lenders of the existing Revolving Credit Loans pursuant to an amendment to this Agreement executed by the Company and the Administrative Agent); provided that no Incremental Revolving Credit Commitment shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Credit Commitments.
mandatory and voluntary prepayments (dunless the applicable Incremental Term Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrowers to the Administrative Agent pursuant to this Section 2.24 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Loans.
(c) Incremental Term Loans may be made, and Incremental Revolving Credit Commitments may be provided, made by any existing Lender or by any Additional LenderLender (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 (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, with respect to Incremental Revolving Credit Commitments, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitments if such consent would be required under Section 10.06 10.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) The . Commitments in respect of Incremental Term Loan Commitments and Incremental Revolving Credit Commitments Loans shall become Commitments (or in the case of an Incremental Revolving Credit Commitment to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment or the provision of a new Incremental Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed (in the case of such amendment to this Agreement) by the CompanyBorrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(f) Any . 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 CompanyBorrowers, 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 on the date thereof of each of the conditions set forth in Section 2.24(a), 4.2 (it being understood that all references to the date of such extension of credit or similar language in Section 4.2 shall be deemed to refer to the payment of any fees payable in connection therewith Incremental Facility Closing Date) and such other conditions as the parties thereto shall agreeagree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrowers may will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit CommitmentsLoans, unless it affirmatively agrees in its sole discretionso agrees.
(g) To the extent that the Incremental Revolving Credit Commitments requested pursuant to this Section 2.24 consist of increases in the existing Revolving Credit Commitments,
(i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment (each a “Incremental Revolving Credit Commitment Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) 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 Credit Commitment be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(hd) Notwithstanding anything to the contrary in this Agreementherein, this Section 2.24 2.19 shall supersede any provisions in Sections 2.18 2.12 or 10.01 10.1 to the contrary and the Borrower Borrowers and the Administrative Agent may amend Section 2.18 solely 2.12 to the extent necessary to give effect to the permitted terms and conditions of implement any Incremental Amendment.
Appears in 1 contract
Samples: Credit Agreement