Incremental Facilities. (a) Any Borrower may by written notice to the Administrative Agent elect to request (i) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) denominated in Dollars or any Alternative Currency, (ii) prior to the Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit Commitments (any such increase, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders. (e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.

Appears in 2 contracts

Samples: Refinancing Amendment (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)

Incremental Facilities. (a) Any Borrower may by written notice to the Administrative Agent elect to request (i) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) denominated in Dollars or any Alternative Currency, (ii) prior to the Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit Commitments (any such increase, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after the ~~Restatement~~ RestatementSecond Amendment Effective Date and at or prior to such time, does not exceed the sum of (1) $~~750,000,000~~ 750,000,0001,000,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed ~~3.50:1.00~~ 3.504.00 :1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017 Incremental Term ~~Loans~~Loans);Second Amendment Effective Date); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, not materially more favorable, taken as a whole, not materially less favorable to the ~~Company~~ Companyinvestors than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be ~~identical~~ identicalsubstantially similar to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be ~~identical~~ identicalsubstantially similar to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders. (e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.and

Appears in 1 contract

Samples: Refinancing Amendment (Hologic Inc)

Incremental Facilities. (a) ~~Any~~ The Borrower ~~may~~ may, at any time and from time to time prior to the Maturity Date, by written notice to the Administrative Agent ~~elect~~ (whereupon the Administrative Agent shall promptly deliver a copy thereof to each of the Lenders), request ~~(i)~~ the ~~establishment~~ addition of one or more new ~~term loan commitments~~ credit facilities (the “New Term Loan Commitments”) denominated in Dollars or any Alternative Currency, (ii) prior to the Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit Commitments (any such increasecollectively, the “~~New Multicurrency Revolving Credit Commitments~~Incremental Facilities”) ~~and/or~~ consisting of a new tranche of term loans (~~iii~~an “Incremental Term Facility”) ~~prior to the USD Revolving Credit Commitment Termination Date,~~ or a new tranche of revolving loans or an increase to in the ~~existing USD~~ Aggregate Revolving ~~Credit Commitments~~ Commitment (an “Incremental Revolving Facility”), or a combination thereof; provided, however, that, at the time of any such ~~increase~~request by the Borrower and upon the effectiveness of any Incremental Facility Amendment referred to below, no Event of Default shall exist, and the ~~“New USD Revolving Credit Commitments”); provided the aggregate amount of all such increased commitments and new loans~~Borrower shall be in compliance with Section 8.4, together with any Permitted Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated determined on a ~~pro forma basis~~ Pro Forma Basis as if such Incremental Facility had been outstanding as of the ~~last day of the then-~~then most ~~recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof~~recent Covenant Determination Date. (b) ~~(the “~~The Incremental ~~Cap”; for the avoidance of doubt~~Facilities shall together be in an aggregate original principal amount not exceeding $100,000,000, ~~clause (1) of this basket shall be reset~~ and ~~shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017~~ each Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan Facility shall be in an aggregate original principal amount not less than $~~25,000,000 individually and integral multiples of $10,000,000 in excess of that amount~~20,000,000. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that Facility: (i) ~~no Default or Event of Default~~ shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment with all other Loans and shall be equally and ratably secured by the Collateral; and (ii) shall have a weighted-average life that is not shorter than that of ~~security~~ the Term B Loans, the Revolving Commitments and the Delayed Draw Term Loans, taken as a whole. The Incremental Facilities may be priced differently than the Term B Loans, Revolving Loans and Delayed Draw Term Loans; provided, however, that if any Loans under any Incremental Term Facility shall bear interest on the unpaid principal amount thereof at an annual rate that exceeds by more than 0.25% (i.e. 25 basis points) the annual rate of interest then payable hereunder on the Term B Loans, then, simultaneously with the ~~other Obligations~~ addition of such Incremental Term Facility, the Applicable Margin with respect to the Term B Loans shall be automatically amended so that the annual interest rate for Term B Loans that are Base Rate Loans or Eurodollar Loans shall be the same as the annual rate applicable to Loans under such Incremental Term Facility. (c) Any such written notice from the Borrower shall set forth the requested amount and terms of the ~~Foreign Obligors hereunder~~relevant Incremental Facilities. The Borrower may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Borrower (ivany such bank or other financial institution being herein called an “Additional Lender”), to extend commitments under the Incremental Facilities, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facilities. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) ~~any New Term Loans and New Revolving Credit Loans incurred~~ to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Company will rank pari passu in right of payment~~ Parent Company, the Borrower, each (if any) existing Lender agreeing to provide such Commitment, each (if any) Additional Lender, and ~~of security with~~ the ~~other Obligations of the Company hereunder and~~ Administrative Agent. (vd) ~~such New Term Loans and New Revolving Credit Loans~~ Each Incremental Facility Amendment shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement may, without the consent of any of the other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~opinion~~ reasonable determination of the Administrative Agent, to effect the provisions of this Section ~~2.16~~ 2.15, including, without limitation, the ~~consent~~ last sentence of ~~any other Lenders~~paragraph (b), and each such Incremental Facility Amendment shall be binding upon all of the parties to this Agreement. (e) ~~For the avoidance~~ The effectiveness of ~~doubt, this Section 2.16~~ each Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section ~~2.20~~5.3. The proceeds of the Incremental Facilities will be used to finance Permitted Acquisitions, for working capital and for other general corporate purposes. (f) Anything in this Section 2.15 express or implied to the contrary notwithstanding: (i) the Administrative Agent and the Arranger shall have the exclusive rights to allocate Incremental Commitments among the Lenders and Additional Lenders providing the Incremental Facilities; (ii) no Incremental Facilities and no Incremental Commitments may become effective on or after the Maturity Date; (iii) the Aggregate Incremental Commitment shall not exceed $100,000,000, and the aggregate principal amount of all Incremental Loans from time to time outstanding shall not at any time exceed $100,000,000, and (iv) except as otherwise provided or contemplated by the foregoing paragraphs of this Section 2.15, the Incremental Facilities, the Incremental Commitments and the Incremental Loans shall be subject to and governed by all of the terms and conditions contained herein.

Appears in 1 contract

Samples: Credit Agreement (Regent Communications Inc)

Incremental Facilities. (a) ~~Any Borrower~~ The Borrowers may ~~by written notice~~ from time to time on or after the Spin-Off Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any existing tranche of) term loans denominated in Dollars (each, an “Incremental Term Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments, and (y) $20,000,000 (or such lesser amount as the Administrative Agent ~~elect to request (i)~~ may reasonably agree), in the ~~establishment~~ case of ~~one or more new term loan commitments (the “New~~ Incremental Term ~~Loan Commitments”) denominated in Dollars or any Alternative Currency~~Loans, ~~(ii) prior to the Multicurrency Revolving Credit Commitment Termination Date~~so long as, ~~an increase to the existing Multicurrency Revolving Credit Commitments (any such increase~~after giving effect thereto, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate amount of all such ~~increased commitments~~ Increased Commitments and ~~new loans, together with any Permitted~~ Incremental ~~Equivalent Debt incurred from~~ Term Loans (other than Refinancing Term Loans and ~~after the Restatement Date and at or prior to such time,~~ Refinancing Revolving Commitments) does not exceed ~~the sum of~~ (1i) $~~750,000,000 and~~ 300,000,000 plus (2ii) ~~the maximum~~ an additional amount that would not cause the ~~Net~~ Senior Secured Net Leverage Ratio ~~to exceed 3.50:1.00 (calculated~~ on a ~~pro forma basis~~ Pro Forma Basis (for the avoidance of doubt, after giving effect to such Increased Commitments or Incremental Term Loans (and the immediately following provisos)) as of the last day of the ~~then-~~most recently ended ~~Fiscal Quarter as if all~~ fiscal quarter at the end of which Financials were required to have been delivered pursuant to Section 5.01(a) or (b) to exceed 2.25 to 1.00; provided that, (x) with respect to any Increased Commitments, the maximum amount of Revolving Loans available to be drawn under such ~~incremental or increased~~ Increased Commitments ~~had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket~~ shall be ~~reset~~ assumed to have been borrowed and ~~shall otherwise be fully available as of the Restatement Date after~~ (y) in each case, without giving effect to ~~the making of the 2017 Incremental Term Loans); provided further that~~ any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, incurrence under clause (i) ~~such increased commitments and new loans maybe~~ above that is incurred substantially simultaneously with amounts under this clause ~~(2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and~~ (ii) less (iii) the ~~2017~~ aggregate principal amount of Incremental Equivalent Indebtedness previously incurred by the Borrowers and their Restricted Subsidiaries. The Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (eachLoan, an “~~Increased Amount Date~~Increasing Lender”~~) on which the applicable Borrower proposes that the~~ ), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New ~~Multicurrency~~ Lender”), to increase their existing Revolving ~~Credit Commitments~~Commitment or Extended Revolving Commitment, ~~New USD~~ or to participate in such Incremental Term Loan, or extend Revolving ~~Credit~~ Commitments or ~~New Term Loan~~ Extended Revolving Commitments, as ~~applicable~~the case may be; provided that each New Lender (and, ~~shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b)~~ in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Increased Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each ~~of the conditions set forth in Section 4.02 shall be satisfied; (iii~~Increasing Lender) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the ~~requirements set forth in~~ approval of the U.S. Borrower and, to the extent such consent would be required under Section ~~3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant~~ 9.04 for an assignment to ~~Section 3.05 in connection with the~~ such New ~~Revolving Credit Commitments or New Term Loan Commitments~~Lender, ~~as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by~~ the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effectedand, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an ~~Institutional Incremental Facility~~Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement may, without Without the consent of any Lenders other than the relevant Increasing Lenders or New Lenders, ~~effect such amendments to~~ this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the applicable Borrower(s), to effect the provisions of this Section ~~2.16 without~~ 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the ~~consent~~ date agreed by the applicable Borrower(s), the Administrative Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.04 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the applicable Borrower(s); provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.04(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.04(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the U.S. Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the U.S. Borrower for which Financials have been delivered prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders. , as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (eii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, 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. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the Weighted Average Life to Maturity of any Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any prepayments), (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Term B Loan Maturity Date, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the applicable Term Loans in any mandatory prepayment hereunder (except in the case of incurrence of Refinancing Indebtedness in respect thereof), (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; provided that, in the case of Incremental Term Loans that are secured pari passu in right of payment and with respect to security with any then existing Term B Loans, the “yield” will not be more than 0.50% higher than the corresponding “yield” applicable to any existing Term B Loans unless the “yield” with respect to the applicable Term B Loans is adjusted to be equal to the “yield” with respect to the relevant Incremental Term Loans, minus 0.50%; provided, further, that in determining the applicable “yield” under this clause (iv): (w) the interest rate margin and any original issue discount (“OID”) or upfront fees paid by the applicable Borrowers in connection with the Term B Loans or Incremental Term Loans (based on a four-year average life to maturity), shall be included, (x) any amendments to or changes in the Applicable Rate with respect to the Term B Loans that became effective subsequent to the Delayed Draw Funding Date but prior to the time of (or concurrently with) the addition of such Incremental Term Loans shall be included, (y) prepayment premiums, customary arrangement, customary commitment, ticking, structuring and customary underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term B Loans or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Term Loans and any similar fees not paid generally to all Lenders shall be excluded and (z) if such Incremental Term Loans include any interest rate floor greater than that which is applicable to the Term B Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the “yield” applicable to the Term B Loans shall be required, but only to the extent an increase in the interest rate floor applicable to the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors, and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (v) above) to the extent not identical to the terms of the then outstanding Term A Loans or Term B Loans, as the case may be, shall be reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date than, and pricing and fees different from, those applicable to the Revolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, ~~this~~ no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan. (b) This Section ~~2.16~~ 2.19 shall ~~be subject~~ override any provisions in Section 9.02 to ~~Section 2.20~~the contrary.

Appears in 1 contract

Samples: Credit Agreement (CONDUENT Inc)

Incremental Facilities. (aA) ~~Any Borrower may by written notice~~ At any time, but not more than one (1) time in the case of raising commitments for incremental term loans and not more than five (5) times during the term of this Agreement in the case of an increase to the Aggregate 2017 Revolving Loan Commitment (unless, in either case, the Administrative Agent ~~elect~~ agrees to an additional number in its sole discretion), and subject to the terms and conditions of this Section 2.23, the Company may request (i) to raise commitments for incremental term loans in order to accommodate an incremental single-draw tranche of Term Loans (the ~~establishment of one or more new~~ “Incremental Term Loans”, and the term loan commitments (relating thereto, the “~~New~~ Incremental Term Loan Commitments”) ~~denominated in Dollars or any Alternative Currency,~~ and/or (ii) ~~prior to the Multicurrency Revolving Credit Commitment Termination Date,~~ an increase in the Aggregate 2017 Revolving Loan Commitment in order to accommodate additional 2017 Revolving Loans (the ~~existing Multicurrency~~ “Incremental 2017 Revolving ~~Credit~~ Loans”, and the 2017 Revolving Loan Commitments relating thereto, the “Incremental 2017 Revolving Loan Commitments”) (any such ~~increase, the~~ increase being referred to herein as a “~~New Multicurrency Revolving Credit Commitments~~Commitment Increase”) ~~and/or (iii) prior to~~ without the ~~USD~~ consent of any Lender not providing such Incremental Term Loan Commitments or Incremental 2017 Revolving ~~Credit Commitment Termination Date~~Loan Commitments, ~~an increase to~~ as the ~~existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”)~~case may be; provided that, the aggregate amount of all ~~such increased commitments and new loans, together with any Permitted~~ Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and ~~the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any~~ Incremental 2017 Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments effected during the term of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders~~shall not exceed $100,000,000. ~~(e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.~~

Appears in 1 contract

Samples: Credit Agreement (Meritor Inc)

Incremental Facilities. (ai) ~~Any Borrower may~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent elect to~~ Agent, may request ~~(i)~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan commitments~~ loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “~~New~~ Incremental Term Loan Commitments”) ~~denominated~~ and/or (y) one or more 49 increases in ~~Dollars or any Alternative Currency, (ii) prior to~~ the ~~Multicurrency~~ Revolving ~~Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit~~ Commitments (~~any such increase~~the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “~~Incremental Cap~~Maximum Facilities Amount”; ) of the Facilities (which term, for the avoidance of doubt, ~~clause (1) of this basket~~ shall be ~~reset and shall otherwise be fully available as of the Restatement Date after giving effect~~ amended pursuant to the ~~making~~ Incremental Commitment Agreement to include any additional tranches of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiariesterm loans so requested, ~~the “Priority Incremental Obligations”~~if applicable) shall not ~~exceed~~exceed $2,650,000,000; provided further, ~~together with any Indebtedness incurred pursuant to Sections 7.01(f) to~~ that the ~~extent incurred~~ Maximum Facilities Amount shall be increased by ~~non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2)~~ an additional $200,000,000 upon consummation of the ~~immediately preceding sentence~~ DTA Acquisition Step 1 in ~~Borrower’s sole discretion prior to being allocated by~~ accordance with the ~~Borrower to the amount allowed under clause (1) from the immediately preceding sentence~~ terms and conditions set forth herein, and (ii) after the ~~2017~~ Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental ~~Term Loans shall not reduce clause (1) of~~ Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Cap. Any~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such ~~increased commitment or new loan~~ request shall be ~~in an amount~~ for not less than $25,000,000 ~~individually~~ (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and ~~integral multiples~~ (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $~~10,000,000 in excess of that amount~~200,000,000. Each such notice ~~from the applicable Borrower~~ shall specify ~~(a)~~ the date (each, an “Increased Amount Date”) on which the ~~applicable~~ Borrower proposes that the ~~New Multicurrency Revolving Credit Commitments, New USD Revolving Credit~~ Incremental Commitments ~~or New Term Loan Commitments, as applicable,~~ shall be effective, which shall be a date not less than ~~five (5)~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each~~ . The Borrower may approach any Lender or ~~other~~ any Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide or arrange all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount DateIncremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall ~~exist~~ have occurred and be continuing on such Increased Amount Date before or after giving effect to such ~~New Revolving Credit Commitments or New Term Loan~~ Incremental Commitments~~, as applicable;~~ , (ii) ~~both before and~~ except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the ~~making of any Series of New Term Loans, each~~ case of the ~~conditions set forth in Section 4.02 shall be satisfied;~~ Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the ~~Company and its Subsidiaries~~ weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be ~~in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of~~ greater than or equal to the then-~~most recently ended Fiscal Quarter as if~~ remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront 50 fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all ~~such incremental~~ of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or ~~increased Commitments had been fully drawn on such date but without netting~~ other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the ~~proceeds thereof~~sum of (x) ~~(provided that, to~~ the ~~extent~~ Applicable Margin for the ~~proceeds of~~ Revolving Loans made pursuant to ~~any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition~~the Revolving Commitments that is in effect on the Increased Amount Date, ~~the requirements specified in clauses (i), (ii)~~ and (~~iii~~y) ~~above~~ the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall ~~only~~ be ~~required~~ equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be ~~satisfied~~ increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the ~~date~~ Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on ~~which definitive purchase~~ the Increased Amount Date, and (y) the OID or ~~merger agreements~~ the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such ~~Limited Condition Acquisition are entered into~~Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above); ) shall not exceed by more than 50 basis points the sum of (iv1) the ~~New~~ Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued 51 or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Increment Revolving ~~Credit~~ Commitments, the Incremental Term Loan Commitments or ~~New Term Loan Commitments, as applicable,~~ the Incremental Synthetic L/C Commitments shall be ~~effected~~ effected, in each case, pursuant to one or more ~~Joinder Agreements~~ incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the ~~applicable~~ Borrower, ~~each New~~ the applicable Incremental Revolving ~~Credit~~ Lender, the Incremental Term Loan Lender or ~~New Term Loan Lender, as applicable,~~ the Incremental Synthetic L/C Lender and the Administrative ~~Agent~~Agent pursuant to which the applicable Incremental Revolving Lender, ~~each of which shall be recorded in the Register, and each New Revolving Credit Lender or New~~ Incremental Term Loan Lender ~~shall~~ or Incremental Synthetic L/C Lender agrees to be ~~subject~~ bound to the ~~requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05~~ terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with ~~the New Revolving Credit Commitments or New~~ an Incremental Term Loan ~~Commitments~~Increase, ~~as applicable; and (vi) the Company shall deliver or cause to be delivered~~ any ~~legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New~~ Incremental Term Loans made on an Increased Amount Date shall be designated a separate ~~series (a “Series”)~~ tranche of ~~New~~ Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. (ic) On any Increased Amount Date on which ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Ax) each of the ~~Multicurrency~~ Lenders with Revolving ~~Credit Lenders~~ Commitments being increased shall assign to each ~~of the New Multicurrency~~ Person with an Incremental Revolving ~~Credit Lenders~~Commitment (each, an “Incremental Revolving Lender”) and each of the ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lenders shall purchase from each of the ~~Multicurrency~~ Lenders with Revolving ~~Credit Lenders~~Commitments, at the principal amount ~~thereof (together with accrued interest)~~thereof, such interests in the ~~Multicurrency~~ Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~such Multicurrency~~ the Revolving ~~Credit~~ Loans will be held by existing ~~Multicurrency~~ Revolving ~~Credit~~ Lenders and ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lenders ratably in accordance with their ~~Multicurrency~~ Revolving ~~Credit~~ Commitments after giving effect to the addition of such ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments to the ~~Multicurrency~~ Revolving ~~Credit~~ Commitments, (By) each ~~of the Multicurrency~~ Incremental Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a ~~Multicurrency~~ Revolving ~~Credit~~ Commitment and each Loan made thereunder (a an “~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Loan”) shall be deemed, for all purposes, a ~~Multicurrency~~ Revolving ~~Credit~~ Loan and (Dz) each ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lender shall become a Lender with respect to the ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (iid) On any Increased Amount Date on which any ~~New~~ Incremental Term Loan Commitments ~~of any Series~~ are ~~effective~~effected, subject to the satisfaction of the foregoing terms and ~~conditions~~conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (Ai) each ~~New~~ Person with an Incremental Term Loan ~~Lender of any Series~~ Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the ~~applicable~~ Borrower (a an “~~New~~ Incremental Term Loan”) in an amount equal to its ~~New~~ Incremental Term Loan ~~Commitment of such Series~~ Commitment, and (Bii) each ~~New~~ Incremental Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the ~~New~~ Incremental Term Loan Commitment ~~of such Series~~ and the ~~New~~ Incremental Term Loans ~~of such Series~~ made pursuant thereto. (~~iii~~e) On any Increased Amount Date on which ~~New USD Revolving Credit~~ any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Ai) each ~~of the USD~~ Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; 52 together with Incremental Revolving ~~Credit~~ Lenders ~~shall assign to each of the New USD Revolving Credit~~ and Incremental Term Loan Lenders, ~~and each of~~ the ~~New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit~~ “Incremental Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall ~~be deemed~~make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~for all purposes, a USD Revolving Credit Loan~~ and (Dii) each ~~New USD Revolving Credit~~ Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~New USD Revolving Credit~~ Incremental Synthetic L/C Commitment and ~~all matters relating~~ the Incremental Synthetic Deposits made pursuant thereto. (cf) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Each Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Commitment Agreement 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 opinion of the Administrative Agent, to effect the provisions of this Section ~~2.16 without~~ 2.23. Notwithstanding anything in this Agreement to the ~~consent of any other Lenders.~~ contrary, (ei) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, as applicable. For the avoidance of doubt, ~~this Section 2.16~~ (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, (ii) the Tranche B Term Loans constitute Incremental Term Loans, and (iii) the Tranche A Term Lenders shall be ~~subject to Section 2.20~~Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) Any Borrower may by written notice to the Administrative Agent elect to request (i) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) denominated in Dollars or any Alternative Currency, (ii) prior to the Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit Commitments (any such increase, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred ~~from and after the Restatement Date and~~ at or prior to such time, does not exceed the ~~sum~~ greater of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f~~) to the extent incurred by non-Loan Parties~~), 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition, the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders. (e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.in

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Hologic Inc)

Incremental Facilities. Borrower may (a) ~~Any Borrower may~~ by written notice from Borrower to Revolving Facility Administrative Agent, elect to request prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (b) by written notice from Borrower to and the Term Administrative Agent elect to request ~~(i)~~ prior to the Maturity Date, the establishment of one or more new term loan commitments (the “New Term Loan Commitments”), in an aggregate principal amount of (i) ~~denominated in Dollars or any Alternative Currency,~~ the New Term Loan Commitments and the New Revolving Loan Commitments plus (ii) ~~prior~~ the aggregate principal amount of Debt Incurred pursuant to Sections 6.1(b)(xxiii) and (xxiv) not in excess of (A) $50,000,000 in the ~~Multicurrency Revolving Credit Commitment Termination Date, an increase~~ aggregate pursuant to ~~the existing Multicurrency Revolving Credit Commitments~~ this clause (~~any such increase, the “New Multicurrency Revolving Credit Commitments”) and/or (iii~~A) prior to ~~the USD Revolving Credit Commitment Termination Date~~date of determination plus (B) at Borrower’s option, an ~~increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate~~ unlimited amount of ~~all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after~~ New Term Loan Commitments and/or the ~~Restatement Date and at or prior to such time, does not exceed~~ New Revolving Loan Commitments so long as the ~~sum of (1) $750,000,000 and (2) the maximum amount that would not cause the~~ First Lien Net ~~Senior Secured~~ Leverage Ratio ~~to exceed 3.50:1.00 (calculated on a pro forma basis~~ is no more than 4.25:1.00 as of the last day of the ~~then-~~Fiscal Quarter most recently ended ~~Fiscal Quarter as if all such incremental or increased Commitments had~~ for which a Compliance Certificate required under Section 5.1(c) has been ~~fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt~~delivered, ~~clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date~~ after giving effect to any such incurrence on a Pro Forma Basis (and excluding the ~~making~~ proceeds of any New Revolving Loans and/or New Term Loans from Unrestricted Cash in clause (b) of the ~~2017~~ definition of Consolidated Total Debt in calculating the First Lien Net Leverage Ratio for purposes of this Section 2.24 and, in the case of unsecured or junior lien Debt Incurred pursuant to Section 6.1(b)(xxiii), calculated assuming such debt is Consolidated First Lien Secured Debt), and, in each case, with respect to any New Revolving Loan Commitment, assuming a borrowing of the maximum amount of Loans available thereunder (such aggregate amount, the “Incremental Amount”). Each New Term ~~Loans); provided further~~ Loan Commitment or New Revolving Loan Commitment shall be in a principal amount that ~~any Obligations incurred~~ is not less than $5,000,000 (or such lesser amount which shall be approved by ~~any Foreign Subsidiary in respect of~~ the applicable Administrative Agent or such lesser amount that shall constitute the difference between $5,000,000 and all such New Revolving Loan Commitments and New Term Loan Commitments ~~or New Revolving Credit Commitments (~~obtained prior to such Obligations of such Foreign Subsidiaries, the “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(iidate), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $~~10,000,000~~ 1,000,000 in excess of that amount. Each such notice ~~from the applicable Borrower~~ shall specify ~~(a)~~ the date (each, an “Increased Amount Date”) on which ~~the applicable~~ Borrower proposes that the New ~~Multicurrency~~ Revolving ~~Credit Commitments, New USD Revolving Credit~~ Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~five (5)~~ 10 Business Days after the date on which such notice is delivered to the Term Administrative Agent or such shorter period of time as consented to by the Term Administrative Agent~~, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each~~ . Borrower may invite any Lender or other Person that is an Eligible Assignee (each, a “New ~~Multicurrency~~ Revolving ~~Credit Lender”, “New USD Revolving Credit~~ Loan Lender” or “New Term Loan Lender,” ”, as applicable) to ~~whom the applicable Borrower proposes any portion of such~~ provide a New Revolving ~~Credit Commitments~~ Loan Commitment or New Term Loan ~~Commitments~~Commitment, as applicable~~, be allocated and the amounts of such allocations~~; provided that ~~the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and~~ any Lender approached to provide all or a portion of the New Revolving ~~Credit~~ Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving ~~Credit~~ Loan Commitment or a New Term Loan Commitment. Such New Revolving ~~Credit~~ Loan Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving ~~Credit~~ Loan Commitments or New Term Loan Commitments, as applicable; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a Permitted Acquisition or other similar Investment, no Event of Default pursuant to clauses (a), (f) or (g) of Section 8.1 shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section ~~4.02~~ 3.2(a)(iii) shall be satisfied; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a Permitted Acquisition or other similar Investment, the representations and warranties required under this clause (~~iii~~2) ~~the Company and its Subsidiaries~~ shall be ~~in pro forma compliance with each of the covenants~~ limited only to representations set forth in ~~Section 7.07 (calculated on a pro forma basis as of~~ Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.7, 4.28, 4.29 and 4.30) if so agreed to by the ~~last day of the then-most recently ended Fiscal Quarter as if all such incremental~~ New Revolving Loan Lenders or ~~increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, to the extent the proceeds of Loans made pursuant to any~~ New Term Loan ~~Commitment will be used to consummate a Limited Condition Acquisition~~Lenders, ~~the requirements specified in clauses (i)~~as applicable, ~~(ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase~~ providing such New Revolving Loan Commitments or ~~merger agreements with respect to such Limited Condition Acquisition are entered into)~~New Term Loans Commitments, as applicable; (iv3) the New Revolving ~~Credit~~ Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the applicable~~ Borrower, ~~each~~ the New Revolving ~~Credit~~ Loan Lender or New Term Loan Lender, as applicable, and ~~the~~ applicable Administrative Agent, and each of which shall be recorded in the ~~Register,~~ Register and each New Revolving ~~Credit~~ Loan Lender or and New Term Loan Lender shall be subject to the requirements set forth in Section ~~3.01(e~~2.20(e); (v4) ~~the applicable Borrower(s)~~ Borrower shall make any payments required pursuant to Section ~~3.05~~ 2.18(c) in connection with the New Revolving ~~Credit~~ Loan Commitments or New Term Loan Commitments, as applicable; and (vi5) ~~the Company~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the applicable Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement~~. (i)~~ . The proceeds of the New Revolving Loan Commitments and New Term Loan Commitments may be applied by Borrower for working capital and general corporate purposes of Parent and its Subsidiaries and any other use not prohibited by this Agreement including, without limitation, the financing of any Permitted Acquisition or similar Investment; provided that the New Revolving Loan Commitments and New Term Loan Commitments shall be not used to prepay any Subordinated Debt. On any Increased Amount Date on which New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Aa) each of the ~~Multicurrency~~ Revolving ~~Credit~~ Lenders shall assign to each of the New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Lenders, and each of the New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Lenders shall purchase from each of the ~~Multicurrency~~ Revolving ~~Credit~~ Lenders, at the principal amount thereof (together with accrued interest), such interests in the ~~Multicurrency~~ Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such ~~Multicurrency~~ Revolving ~~Credit~~ Loans will be held by existing ~~Multicurrency~~ Revolving ~~Credit~~ Lenders and New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Lenders ratably in accordance with their ~~Multicurrency~~ Revolving ~~Credit~~ Commitments after giving effect to the addition of such New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Commitments to the ~~Multicurrency~~ Revolving ~~Credit~~ Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (Cb) each New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a ~~Multicurrency~~ Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New ~~Multicurrency~~ Revolving ~~Credit~~ Loan”) shall be deemed, for all purposes, a ~~Multicurrency~~ Revolving ~~Credit~~ Loan and (Dc) each New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Lender shall become a Lender with respect to the New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (ii)~~ . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (Ai) each New Term Loan Lender of any Series shall make a Loan to ~~the applicable~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series~~ Series, and (Bii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) . The applicable Administrative Agent shall notify ~~the~~ Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (xy) the New ~~Multicurrency~~ Revolving ~~Credit~~ Loan Commitments and the New ~~Multicurrency~~ Revolving ~~Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit~~ Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (yz) in the case of each notice to any Revolving ~~Credit~~ Lender, the respective interests in such Revolving ~~Credit~~ Lender’s Revolving ~~Credit Loans~~ Loans, in each case subject to the assignments contemplated by this ~~Section. (d)~~ Section 2.24. The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except~~ be as ~~otherwise~~ set forth herein or in the applicable Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit LoansAgreement. In any event (i~~) (A~~) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Revolving Loans or the Initial Term Loans ~~and~~ (Bwhichever is longest), (ii) the ~~New Term Loan~~ applicable Maturity Date of each Series shall be no ~~earlier~~ shorter than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after latest of the ~~Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to~~ final maturity of the Revolving Loans and the Term Loans, (iiiii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by ~~the applicable~~ Borrower and the applicable ~~New Term~~ new Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than~~ provided, however, the Weighted Average Yield applicable to the New Term ~~Facility, then~~ Loans shall not be greater than the ~~Applicable Rate that shall apply~~ applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation of with respect to the Initial Term Loans plus 0.50% per annum unless the interest rate with respect to the Initial Term Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Initial Term Loans ~~shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount~~ to equal ~~to the difference between~~ the Weighted Average Yield ~~with respect~~ then applicable to ~~such Non-Institutional Incremental~~ the New Term ~~Facility~~ Loans less 0.50% and (iv) all other terms of the ~~Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any~~ New Term Loans and New ~~Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security~~ Term Loan Commitments, if not consistent with the ~~other Obligations~~ terms of the ~~Foreign Obligors hereunder~~Initial Term Loans, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, as applicable must be ~~guaranteed by the Guaranty. Notwithstanding anything~~ reasonably acceptable to the ~~contrary in this Section 2.16, New~~ Term ~~Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans~~Administrative Agent. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the opinion of the applicable Administrative ~~Agent,~~ Agent to effect the ~~provisions~~ provision of this Section ~~2.16 without the consent of any other Lenders~~2.24. ~~(e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.~~

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Nord Anglia Education, Inc.)

Incremental Facilities. (a) ~~Any~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~may~~ may, by ~~written~~ notice to the Administrative Agent ~~elect~~ (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(i) the establishment of~~ to add additional Tranche B Term Loans or add one or more ~~new~~ additional tranches of term ~~loan commitments~~ loans (the “~~New~~ Incremental Term ~~Loan Commitments~~Loans”) ~~denominated~~ or one or more increases in ~~Dollars or any Alternative Currency, (ii) prior to~~ the ~~Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency~~ Revolving Credit Commitments (~~any such increase,~~ the “~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments”~~) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date~~; each such increase or tranche, an ~~increase to the existing USD Revolving Credit Commitments (any such increase, the~~ “~~New USD Revolving Credit Commitments~~Incremental Facility”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (A) no Default or Event of Default has occurred and is continuing or shall result therefrom and (B) the full amount of the respective Incremental Facility (assuming the full utilization of the commitments thereunder) may be drawn without violating the terms of any Material Debt. Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of ~~all such increased commitments and new loans, together with any Permitted~~ the Incremental ~~Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does~~ Facilities shall not exceed $250,000,000 (the ~~sum of~~ “Non-Ratio-Based Incremental Facility Cap”); provided that the Borrower may incur additional Incremental Facilities without regard to the Non-Ratio-Based Incremental Facility Cap (1each such Incremental Facility, a “Ratio-Based Incremental Facility”) ~~$750,000,000 and (2)~~ so long as the ~~maximum amount that would not cause the~~ Consolidated Net Senior Secured Leverage ~~Ratio to exceed 3.50:1.00 (calculated~~ Ratio, determined on a ~~pro forma basis~~ Pro Forma Basis as of the last day of the ~~then-most recently ended Fiscal Quarter as~~ Relevant Reference Period (or, if ~~all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt~~no Relevant Reference Period has passed, ~~clause (1) of this basket shall be reset and shall otherwise be fully available~~ as of the ~~Restatement Date after giving effect~~ most recent four consecutive fiscal quarter period then ended), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the ~~making~~ full amount of any such Incremental Revolving Commitments) had been outstanding on the ~~2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations~~ last day of such ~~Foreign Subsidiaries~~Relevant Reference Period, ~~the “Priority Incremental Obligations”)~~ shall not ~~exceed, together with any Indebtedness incurred pursuant~~ exceed 2.75 to ~~Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap~~1.00. ~~For the avoidance~~ Each tranche of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans ~~shall not reduce clause (1) of the~~ and Incremental ~~Cap. Any such increased commitment or new loan~~ Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~25,000,000 individually and integral multiples~~ 50,000,000 in case of Incremental Term Loans or $10,000,000 in ~~excess~~ case of Incremental Revolving Commitments (or in each case such lesser minimum amount reasonably approved by the Administrative Agent), provided that ~~amount. Each~~ such ~~notice from~~ amount may be less than the applicable ~~Borrower~~ minimum amount if such amount represents all the remaining availability under the Incremental Amount set forth above. (b) Any Incremental Term Loans (i) shall ~~specify (a)~~ rank pari passu or junior in right of payment and security with the ~~date (each, an “Increased Amount Date”) on which~~ Obligations in respect of the ~~applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD~~ Revolving Credit Commitments and the other outstanding Term Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than amortization, maturity date and pricing (interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Tranche B Term Loans or ~~New~~ such terms as are reasonably satisfactory to the Administrative Agent; provided that (A) if such Incremental Term ~~Loan Commitments~~Loans are pari passu in right of payment and security with the Revolving Credit Commitments and other outstanding Term Loans, then if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Incremental Term Loans and (2) four years) payable to all Lenders providing such Incremental Term Loans (but excluding any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Term Loans) on such Incremental Term Loans determined as of the initial funding date for such Incremental Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Tranche B Term Loans or any then existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Tranche B Term Loans or such then existing Incremental Term Loans, as applicable, shall be ~~effective~~adjusted and/or the Borrower will pay additional fees to Lenders holding Tranche B Term Loans or such then existing Incremental Term Loans, ~~which~~ as applicable, in order that such effective yield on such Incremental Term Loans shall not exceed such effective yield on the Tranche B Term Loans and such then existing Incremental Term Loans by more than 0.50%, (B) any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Tranche B Term Loans, (C) any Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Tranche B Term Loans or then existing Incremental Term Loans, as applicable, and (D) any Incremental Term Loans consisting of an increase in the Tranche B Term Loans shall have terms identical to the Tranche B Term Loans. Any Incremental Revolving Commitment shall be on terms and pursuant to the documentation applicable to the Revolving Credit Commitments; provided that if the effective yield (determined on the same basis as provided in the preceding sentence) relating to any revolving loans under the Incremental Revolving Commitments exceeds the effective yield (determined on the same basis as provided in the preceding sentence) relating to Loans under the Revolving Credit Facility immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Loans under the Revolving Credit Facility shall be adjusted and/or the Borrower shall pay additional fees to the Lenders holding the existing Revolving Credit Commitments in order that the effective yield on revolving loans borrowed pursuant to the Incremental Revolving Commitments shall not exceed the effective yield on the Loans under the Revolving Credit Facility by more than 0.50%. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the Borrower and (unless such Additional Lender is already a ~~date not less than five (5~~Lender or an Affiliate of a Lender) ~~Business Days after the date on which such notice is delivered to~~ the Administrative Agent, and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (beach, an “Incremental Facility Amendment”) ~~in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments~~to this Agreement and, as appropriate, the ~~currency in which~~ other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be ~~denominated~~ 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 or any other Person, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (c) including to provide for class voting provisions applicable to the ~~identity~~ Additional Lenders on terms comparable to the provisions of ~~each Lender~~ Section 9.2(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or ~~other Person that is an Eligible Assignee~~ waiver on the date thereof (each, a an “~~New Multicurrency Revolving Credit Lender~~Incremental Facility Closing Date”~~, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable~~) ~~to whom the applicable Borrower proposes any portion~~ of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section ~~4.02~~ 4.2 (it being understood that all references to the date of making any extension of credit in Section 4.2 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, deemed to refer to the ~~extent the~~ Incremental Facility Closing Date). The proceeds of any Incremental Term Loans ~~made pursuant to any New Term Loan Commitment~~ will be used ~~to consummate a Limited Condition Acquisition,~~ for general corporate purposes (including financing Capital Expenditures and Permitted Acquisitions). To the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents extent reasonably requested by the Administrative ~~Agent~~ Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrower and the Restricted Subsidiaries. Upon each increase in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency the Revolving Credit Commitments ~~are effected~~pursuant to this Section, ~~subject to the satisfaction of the foregoing terms and conditions, (A)~~ each ~~of the Multicurrency~~ Revolving Credit ~~Lenders shall assign~~ Lender immediately prior to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans increase will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each Lender providing a portion of the ~~New Multicurrency~~ Incremental Revolving ~~Credit Lenders~~Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~Multicurrency~~ Revolving Credit Lender’s participations hereunder in outstanding ~~Multicurrency~~ Letters of Credit ~~as shall be necessary in order~~ and Swingline Loans such that, after giving effect to ~~all~~ each such ~~assignments~~deemed assignment and assumption of participations, ~~such~~ the percentage of the aggregate outstanding (i) participations hereunder in ~~Multicurrency~~ Letters of Credit ~~will be~~ and (ii) participations hereunder in Swingline Loans held by ~~existing Multicurrency~~ each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held represented by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit ~~Loans subject~~ Commitment. 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 assignments contemplated by this Section. (d) The terms and provisions~~ any of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred transactions effected pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders2.24. ~~(e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.~~

Appears in 1 contract

Samples: Credit Agreement (GNC Holdings, Inc.)

Incremental Facilities. (a) ~~Any~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~may~~ may, by ~~written~~ notice to the Administrative Agent ~~elect~~ (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~(i) the establishment of~~ to add additional Tranche B Term Loans or add one or more ~~new~~ additional tranches of term ~~loan commitments~~ loans (the “~~New~~ Incremental Term ~~Loan Commitments~~Loans”) ~~denominated~~ or one or more increases in ~~Dollars or any Alternative Currency, (ii) prior to~~ the ~~Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency~~ Revolving Credit Commitments (~~any such increase,~~ the “~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments”~~) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date~~; each such increase or tranche, an ~~increase to the existing USD Revolving Credit Commitments (any such increase, the~~ “~~New USD Revolving Credit Commitments~~Incremental Facility”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (A) no Default or Event of Default has occurred and is continuing or shall result therefrom and (B) the full amount of the respective Incremental Facility (assuming the full utilization of the commitments thereunder) may be drawn without violating the terms of any Material Debt. Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of ~~all such increased commitments and new loans, together with any Permitted~~ the Incremental ~~Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does~~ Facilities shall not exceed $135,000,000 (the ~~sum~~ “Non-Ratio-Based Incremental Facility Cap”); provided that the Borrower may incur up to $275,000,000 of additional Incremental Facilities without regard to the Non-Ratio-Based Incremental Facility Cap (1each such Incremental Facility, a “Ratio-Based Incremental Facility”) ~~$750,000,000 and (2)~~ so long as the ~~maximum amount that would not cause the Net~~ Consolidated Senior Secured Leverage ~~Ratio to exceed 3.50:1.00 (calculated~~ Ratio, determined on a ~~pro forma basis~~ Pro Forma Basis as of the last day of the ~~then-most recently ended Fiscal Quarter as~~ Relevant Reference Period (or, if ~~all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt~~no Relevant Reference Period has passed, ~~clause (1) of this basket shall be reset and shall otherwise be fully available~~ as of the ~~Restatement Date after giving effect~~ most recent four consecutive fiscal quarter period then ended), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the ~~making~~ full amount of any such Incremental Revolving Commitments) had been outstanding on the ~~2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations~~ last day of such ~~Foreign Subsidiaries~~Relevant Reference Period, ~~the “Priority Incremental Obligations”)~~ shall not ~~exceed, together with any Indebtedness incurred pursuant~~ exceed 3.50 to ~~Sections 7.01(f) to the extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap~~1.00. ~~For the avoidance~~ Each tranche of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans ~~shall not reduce clause (1) of the~~ and Incremental ~~Cap. Any such increased commitment or new loan~~ Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $~~25,000,000 individually and integral multiples~~ 50,000,000 in case of Incremental Term Loans or $10,000,000 in ~~excess~~ case of Incremental Revolving Commitments (or in each case such lesser minimum amount reasonably approved by the Administrative Agent), provided that ~~amount. Each~~ such ~~notice from~~ amount may be less than the applicable ~~Borrower~~ minimum amount if such amount represents all the remaining availability under the Incremental Amount set forth above. (b) Any Incremental Term Loans (i) shall ~~specify (a)~~ rank pari passu or junior in right of payment and security with the ~~date (each, an “Increased Amount Date”) on which~~ Obligations in respect of the ~~applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD~~ Revolving Credit Commitments and the other outstanding Term Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than amortization, maturity date and pricing (interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Tranche B Term Loans or ~~New~~ such terms as are reasonably satisfactory to the Administrative Agent; provided that (A) if such Incremental Term ~~Loan Commitments~~Loans are pari passu in right of payment and security with the Revolving Credit Commitments and other outstanding Term Loans, then if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Incremental Term Loans and (2) four years) payable to all Lenders providing such Incremental Term Loans (but excluding any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Term Loans) on such Incremental Term Loans determined as of the initial funding date for such Incremental Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Tranche B Term Loans or any then existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Tranche B Term Loans or such then existing Incremental Term Loans, as applicable, shall be ~~effective~~adjusted and/or the Borrower will pay additional fees to Lenders holding Tranche B Term Loans or such then existing Incremental Term Loans, ~~which~~ as applicable, in order that such effective yield on such Incremental Term Loans shall not exceed such effective yield on the Tranche B Term Loans and such then existing Incremental Term Loans by more than 0.50%, (B) any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Tranche B Term Loans, (C) any Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Tranche B Term Loans or then existing Incremental Term Loans, as applicable, and (D) any Incremental Term Loans consisting of an increase in the Tranche B Term Loans shall have terms identical to the Tranche B Term Loans. Any Incremental Revolving Commitment shall be on terms and pursuant to the documentation applicable to the Revolving Credit Commitments; provided that if the effective yield (determined on the same basis as provided in the preceding sentence) relating to any revolving loans under the Incremental Revolving Commitments exceeds the effective yield (determined on the same basis as provided in the preceding sentence) relating to Loans under the Revolving Credit Facility immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Loans under the Revolving Credit Facility shall be adjusted and/or the Borrower shall pay additional fees to the Lenders holding the existing Revolving Credit Commitments in order that the effective yield on revolving loans borrowed pursuant to the Incremental Revolving Commitments shall not exceed the effective yield on the Loans under the Revolving Credit Facility by more than 0.50%. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the Borrower and (unless such Additional Lender is already a ~~date not less than five (5~~Lender or an Affiliate of a Lender) ~~Business Days after the date on which such notice is delivered to~~ the Administrative Agent, and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (beach, an “Incremental Facility Amendment”) ~~in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments~~to this Agreement and, as appropriate, the ~~currency in which~~ other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be ~~denominated~~ obligated to provided 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 or any other Person, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (c) including to provide for class voting provisions applicable to the ~~identity~~ Additional Lenders on terms comparable to the provisions of ~~each Lender~~ Section 9.2(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or ~~other Person that is an Eligible Assignee~~ waiver on the date thereof (each, a an “~~New Multicurrency Revolving Credit Lender~~Incremental Facility Closing Date”~~, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable~~) ~~to whom the applicable Borrower proposes any portion~~ of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section ~~4.02~~ 4.2 (it being understood that all references to the date of making any extension of credit in Section 4.2 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (provided that, deemed to refer to the ~~extent the~~ Incremental Facility Closing Date). The proceeds of any Incremental Term Loans ~~made pursuant to any New Term Loan Commitment~~ will be used ~~to consummate a Limited Condition Acquisition,~~ for general corporate purposes (including financing Capital Expenditures and Permitted Acquisitions). To the requirements specified in clauses (i), (ii) and (iii) above shall only be required to be satisfied on the date on which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents extent reasonably requested by the Administrative ~~Agent~~ Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrower and the Restricted Subsidiaries. Upon each increase in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New Multicurrency the Revolving Credit Commitments ~~are effected~~pursuant to this Section, ~~subject to the satisfaction of the foregoing terms and conditions, (A)~~ each ~~of the Multicurrency~~ Revolving Credit ~~Lenders shall assign~~ Lender immediately prior to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans increase will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (B) each of the Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each Lender providing a portion of the ~~New Multicurrency~~ Incremental Revolving ~~Credit Lenders~~Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~Multicurrency~~ Revolving Credit Lender’s participations hereunder in outstanding ~~Multicurrency~~ Letters of Credit ~~as shall be necessary in order~~ and Swingline Loans such that, after giving effect to ~~all~~ each such ~~assignments~~deemed assignment and assumption of participations, ~~such~~ the percentage of the aggregate outstanding (i) participations hereunder in ~~Multicurrency~~ Letters of Credit ~~will be~~ and (ii) participations hereunder in Swingline Loans held by ~~existing Multicurrency~~ each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto. (ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held represented by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit ~~Loans subject~~ Commitment. 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 assignments contemplated by this Section. (d) The terms and provisions~~ any of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred transactions effected pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement 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 opinion of Administrative Agent, to effect the provisions of this Section 2.16 without the consent of any other Lenders2.24. ~~(e) For the avoidance of doubt, this Section 2.16 shall be subject to Section 2.20.~~

Appears in 1 contract

Samples: Credit Agreement (GNC Acquisition Holdings Inc.)

Incremental Facilities. (ai) ~~Any Borrower may~~ After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent elect to~~ Agent, may request ~~(i)~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan commitments~~ loans or (B) increases (an “Incremental Term Loan Increase”) to an existing tranche of term loans (the commitments thereto, the “~~New~~ Incremental Term Loan Commitments”) ~~denominated~~ and/or (y) one or more increases in ~~Dollars or any Alternative Currency, (ii) prior to~~ the ~~Multicurrency~~ Revolving ~~Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit~~ Commitments (~~any such increase~~the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “~~Incremental Cap~~Maximum Facilities Amount”; ) of the Facilities (which term, for the avoidance of doubt, ~~clause (1) of this basket~~ shall be ~~reset and shall otherwise be fully available as of the Restatement Date after giving effect~~ amended pursuant to the ~~making~~ Incremental Commitment Agreement to include any additional tranches of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments (such Obligations of such Foreign Subsidiariesterm loans so requested, ~~the “Priority Incremental Obligations”~~if applicable) shall not ~~exceed~~exceed $2,650,000,000; provided further, ~~together with any Indebtedness incurred pursuant to Sections 7.01(f) to~~ that the ~~extent incurred~~ Maximum Facilities Amount shall be increased by ~~non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2)~~ an additional $200,000,000 upon consummation of the ~~immediately preceding sentence~~ DTA Acquisition Step 1 in ~~Borrower’s sole discretion prior to being allocated by~~ accordance with the ~~Borrower to the amount allowed under clause (1) from the immediately preceding sentence~~ terms and conditions set forth herein, and (ii) after the ~~2017~~ Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental ~~Term Loans shall not reduce clause (1) of~~ Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Cap. Any~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such ~~increased commitment or new loan~~ request shall be ~~in an amount~~ for not less than $25,000,000 ~~individually~~ (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and ~~integral multiples~~ (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $~~10,000,000 in excess of that amount~~200,000,000. Each such notice ~~from the applicable Borrower~~ shall specify ~~(a)~~ the date (each, an “Increased Amount Date”) on which the ~~applicable~~ Borrower proposes that the ~~New Multicurrency Revolving Credit Commitments, New USD Revolving Credit~~ Incremental Commitments ~~or New Term Loan Commitments, as applicable,~~ shall be effective, which shall be a date not less than ~~five (5)~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each~~ . The Borrower may approach any Lender or ~~other~~ any Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide or arrange all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Such New Revolving Credit Commitments or New Term Loan Commitments shall become effective as of such Increased Amount DateIncremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall ~~exist~~ have occurred and be continuing on such Increased Amount Date before or after giving effect to such ~~New Revolving Credit Commitments or New Term Loan~~ Incremental Commitments~~, as applicable;~~ , (ii) ~~both before and~~ except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the ~~making of any Series of New Term Loans, each~~ case of the ~~conditions set forth in Section 4.02 shall be satisfied;~~ Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the ~~Company and its Subsidiaries~~ weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be ~~in pro forma compliance with each of the covenants set forth in Section 7.07 (calculated on a pro forma basis as of the last day of~~ greater than or equal to the then-~~most recently ended Fiscal Quarter as if~~ remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all ~~such incremental~~ of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or ~~increased Commitments had been fully drawn on such date but without netting~~ other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the ~~proceeds thereof~~sum of (x) ~~(provided that, to~~ the ~~extent~~ Applicable Margin for the ~~proceeds of~~ Revolving Loans made pursuant to ~~any New Term Loan Commitment will be used to consummate a Limited Condition Acquisition~~the Revolving Commitments that is in effect on the Increased Amount Date, ~~the requirements specified in clauses (i), (ii)~~ and (~~iii~~y) ~~above~~ the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall ~~only~~ be ~~required~~ equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be ~~satisfied~~ increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the ~~date~~ Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on ~~which definitive purchase~~ the Increased Amount Date, and (y) the OID or ~~merger agreements~~ the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) (x) with respect to the Term Loans (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such ~~Limited Condition Acquisition are entered into~~Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above); ) shall not exceed by more than 50 basis points the sum of (iv1) the ~~New~~ Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 50 basis points, and (y) with respect to the Tranche B Term Loans, the interest rate margin in respect of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) incurred after the Tranche B Term Facility Funding Date (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Tranche B Term Loans that is in effect on the Increased Amount Date, and (2) the upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Tranche B Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Tranche B Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans and (3) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Increment Revolving ~~Credit~~ Commitments, the Incremental Term Loan Commitments or ~~New Term Loan Commitments, as applicable,~~ the Incremental Synthetic L/C Commitments shall be ~~effected~~ effected, in each case, pursuant to one or more ~~Joinder Agreements~~ incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the ~~applicable~~ Borrower, ~~each New~~ the applicable Incremental Revolving ~~Credit~~ Lender, the Incremental Term Loan Lender or ~~New Term Loan Lender, as applicable,~~ the Incremental Synthetic L/C Lender and the Administrative ~~Agent~~Agent pursuant to which the applicable Incremental Revolving Lender, ~~each of which shall be recorded in the Register, and each New Revolving Credit Lender or New~~ Incremental Term Loan Lender ~~shall~~ or Incremental Synthetic L/C Lender agrees to be ~~subject~~ bound to the ~~requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05~~ terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with ~~the New Revolving Credit Commitments or New~~ an Incremental Term Loan ~~Commitments~~Increase, ~~as applicable; and (vi) the Company shall deliver or cause to be delivered~~ any ~~legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New~~ Incremental Term Loans made on an Increased Amount Date shall be designated a separate ~~series (a “Series”)~~ tranche of ~~New~~ Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. (ic) On any Increased Amount Date on which ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Ax) each of the ~~Multicurrency~~ Lenders with Revolving ~~Credit Lenders~~ Commitments being increased shall assign to each ~~of the New Multicurrency~~ Person with an Incremental Revolving ~~Credit Lenders~~Commitment (each, an “Incremental Revolving Lender”) and each of the ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lenders shall purchase from each of the ~~Multicurrency~~ Lenders with Revolving ~~Credit Lenders~~Commitments, at the principal amount ~~thereof (together with accrued interest)~~thereof, such interests in the ~~Multicurrency~~ Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~such Multicurrency~~ the Revolving ~~Credit~~ Loans will be held by existing ~~Multicurrency~~ Revolving ~~Credit~~ Lenders and ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lenders ratably in accordance with their ~~Multicurrency~~ Revolving ~~Credit~~ Commitments after giving effect to the addition of such ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitments to the ~~Multicurrency~~ Revolving ~~Credit~~ Commitments, (By) each ~~of the Multicurrency~~ Incremental Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a ~~Multicurrency~~ Revolving ~~Credit~~ Commitment and each Loan made thereunder (a an “~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Loan”) shall be deemed, for all purposes, a ~~Multicurrency~~ Revolving ~~Credit~~ Loan and (Dz) each ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Lender shall become a Lender with respect to the ~~New Multicurrency~~ Incremental Revolving ~~Credit~~ Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (iid) On any Increased Amount Date on which any ~~New~~ Incremental Term Loan Commitments ~~of any Series~~ are ~~effective~~effected, subject to the satisfaction of the foregoing terms and ~~conditions~~conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (Ai) each ~~New~~ Person with an Incremental Term Loan ~~Lender of any Series~~ Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the ~~applicable~~ Borrower (a an “~~New~~ Incremental Term Loan”) in an amount equal to its ~~New~~ Incremental Term Loan ~~Commitment of such Series~~ Commitment, and (Bii) each ~~New~~ Incremental Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the ~~New~~ Incremental Term Loan Commitment ~~of such Series~~ and the ~~New~~ Incremental Term Loans ~~of such Series~~ made pursuant thereto. (~~iii~~e) On any Increased Amount Date on which ~~New USD Revolving Credit~~ any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Ai) each ~~of the USD~~ Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving ~~Credit~~ Lenders ~~shall assign to each of the New USD Revolving Credit~~ and Incremental Term Loan Lenders, ~~and each of~~ the ~~New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit~~ “Incremental Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (B) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall ~~be deemed~~make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~for all purposes, a USD Revolving Credit Loan~~ and (Dii) each ~~New USD Revolving Credit~~ Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~New USD Revolving Credit~~ Incremental Synthetic L/C Commitment and ~~all matters relating~~ the Incremental Synthetic Deposits made pursuant thereto. (cf) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Each Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Commitment Agreement 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 opinion of the Administrative Agent, to effect the provisions of this Section ~~2.16 without~~ 2.23. Notwithstanding anything in this Agreement to the ~~consent of any other Lenders.~~ contrary, (ei) the references to the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, as applicable. For the avoidance of doubt, ~~this Section 2.16~~ (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, (ii) the Tranche B Term Loans constitute Incremental Term Loans, and (iii) the Tranche A Term Lenders shall be ~~subject to Section 2.20~~Incremental Term Loan Lenders, in each case, for all purposes of this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Credit Agreement (Avis Budget Group, Inc.)

Common use of Incremental Facilities Clause in Contracts