Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that: (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii)); (b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured; (c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing; (d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers); (e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date; (f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds); (g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 3 contracts
Samples: Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments The Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five from time to time request Incremental Term Loans in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (5) Business Days prior which may include any existing Lender, it being understood that no existing Lender shall be required to the desired effective date of such increase (the “Revolver Increase” and together with provide any Incremental Term FacilitiesLoans) willing to provide such Incremental Term Loans, collectivelyas the case may be, in their own discretion; provided, that each Incremental Term Lender, if not already a Lender hereunder (unless such Lender is the “Incremental Facilities”Sponsor or an Affiliate thereof), shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment the Incremental Term Loans being requested (which shall be (1) in minimum increments of $10,000,000, or additional amount of its Revolving Credit Commitment); provided, however, that:
(a2) equal to the aggregate amount of all such remaining Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iAmount), (ii) an amount such thatthe date, after giving Pro Forma Effect to which shall be a Business Day, on which such Incremental Facility Term Loans are requested to be made to become effective (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent “Increased Amount Date”) pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any an Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofActivation Notice, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal whether such Incremental Term Loans are to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to be loans on the actual amount so repaid, repurchased and/or canceled) of Incremental same terms as the outstanding Term Loans or loans with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Equivalent Debt Term Loan and Revolving Loans (v) pro forma financial statements demonstrating (A) compliance on a pro forma basis with the financial covenant contained in Section 7.1(b) and (B) that the case of Revolving Loans, to Consolidated Leverage Ratio is not greater than the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)Incurrence Ratio, in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event Term Loan and the application of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently therefrom (including by giving pro forma effect to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (cany Permitted Acquisition financed thereby) shall only be required to be satisfied on the LCT Test Date; provided, however, that as if made and applied on the date of the consummation most-recent financial statements of the Borrower delivered pursuant to Section 6.1.
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such Limited Condition Acquisition and other documentation as the funding Administrative Agent shall reasonably specify to evidence the Incremental Term Loans of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than June 1, 2016, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the average life to maturity of the existing Term Facility, no Event (iii) if the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of Default under Section 9.01(aany Incremental Term Loans exceeds the total yield for the existing Term Loans (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no higher than the total yield for the existing Term Loans, (jiv) or the Incremental Term Loans will rank pari passu with in right of payment and security with the Loans, (kv) hereof the proceeds for such Incremental Term Loan shall have occurred not be used to repurchase any subordinated Indebtedness and (vi) the other terms of the Incremental Term Loans, to the extent not consistent with those of the Term Loans, shall be continuing;reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(dc) each Notwithstanding the foregoing, no Incremental Term Loan may be made under this Section 2.24 unless (i) on the date on which such Loan is made or of such effectiveness, the representations and warranties conditions set forth in Section 6 and in the other Loan Documents 5.2 shall be satisfied and remain true the Administrative Agent shall have received a certificate to that effect dated such date and correct in all material respects on the effective date of such Incremental Facility (where not already qualified executed by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds a Responsible Officer of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date Borrower and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonablyshall have received legal opinions, board resolutions and other closing certificates and documentation to the extent (i) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined required by the Borrower relevant Incremental Assumption Agreement and (ii) consistent with those delivered on the Closing Date under Section 6.1 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent (except for covenants or other provisions (x) applicable only may reasonably require to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of assure that the Incremental Facility shall be agreed upon Term Loans are secured by the Borrower and Collateral ratably with the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityTerm Loans.
Appears in 3 contracts
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Sugarloaf Gwinnett Entertainment Company, L.P.)
Incremental Facilities. The Borrower may (a) add The Opco Borrower may at any time or from time to time on and after the Security Date, by notice to the Administrative Agent, request one or more incremental additional tranches of term loan facilities loans (which may take the form of an “Incremental increase in the principal amount of any existing tranche of Term Facility” and Loans) (the loans borrowed thereunder “Incremental Term Loans”) or (b) increase increases in the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of each such increase (the a “Revolver Increase” and together with any Incremental Revolving Commitment”; Incremental Term Facilities, collectively, Loans and Incremental Revolving Commitments are collectively referred to herein as the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedso long as, howeverupon giving effect thereto, that:
(a) the aggregate amount of all such Incremental Facilities shall does not exceed (I) other than during an Investment Grade Period, the sum of (ix) the greater of $300,000,000 less the aggregate principal amount 250,000,000 and 100% of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause EBITDA plus (i), (iiy) an unlimited additional amount such that, so long as immediately after giving Pro Forma Effect effect (including pro forma effect) to such Incremental Facility Facilities (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio that any such Incremental Facilities are drawn in full (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if but excluding the proceeds of any such Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on Facilities for purposes of calculating clause (b) of the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”definition of Consolidated Total Net Debt in the calculation of the Secured Net Leverage Ratio)), then at the election Secured Net Leverage Ratio would not exceed 3:00 to 1.00 (other than to the extent such Incremental Facilities are incurred pursuant to this clause (y) concurrently with the incurrence of Incremental Facilities in reliance on clause (x) of this sentence, in which case the Secured Net Leverage Ratio shall be permitted to exceed 3.00 to 1.00 to the extent of such Incremental Facilities incurred in reliance on such clause (x)) or (II) during an Investment Grade Period, an unlimited amount so long as immediately after giving effect (including pro forma effect) to such Incremental Facilities (assuming that any such Incremental Facilities are drawn in full (but excluding the proceeds of any such Incremental Facilities for purposes of calculating clause (b) of the Borrower, definition of Consolidated Total Net Debt in the foregoing calculation of the Total Net Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments thereforRatio)), the Parent Borrower shall be in each case, not made compliance with the proceeds of any long-term indebtedness covenants contained in Section 6.11 (excludingprovided that, for the avoidance of doubt, Revolving Loans) with respect to this clause (it being understood that II), all such Incremental Facilities shall be unsecured); provided that, in each case of clauses (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans ), no Incremental Term Loans may be incurred under made and no Incremental Revolving Commitments may become effective unless, (i) on the proposed date of the making of such Incremental Term Loans or the effectiveness of such Incremental Revolving Commitments, as applicable, (A) the conditions set forth in clauses (i), (iia) and (iii), b) of Section 4.03 shall be satisfied or waived by the Required Lenders and proceeds from any the Administrative Agent shall have received a certificate on behalf of the Parent Borrower to that effect dated such incurrence under clauses (i), (ii) date and executed by a Financial Officer of the Parent Borrower and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities and related guarantees may rank pari passu Parent Borrower shall be in right of payment and be secured compliance (on a pari passu basis pro forma basis, assuming full drawing under the applicable Incremental Facility) with the Revolving Loanscovenants contained in Section 6.11; provided that, and in the case of any Incremental Term Facility onlyFacilities the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, may also rank junior in right to the extent agreed by the Lenders providing such Incremental Facilities, (I) the representations and warranties the accuracy of payment and be secured on which are a junior basis with condition to the Revolving Loans, or funding of such Incremental Facilities may be unsecured;
limited to (c1) immediately prior customary specified representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Facilities), and (2) those representations of the acquired company in the applicable acquisition agreement that are material to the interests of the lenders under the Incremental Facilities and after giving effect if breached would give the Opco Borrower the right to terminate or refuse to close under the applicable acquisition agreement and (II) (x) at the time of the execution and delivery of the purchase agreement or other definitive documentation related to such Incremental FacilityLimited Condition Transaction, no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance continuing or shall occur as a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause result thereof and (cy) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition effectiveness and the funding making of any such Incremental FacilityFacilities, no Event of Specified Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents continuing or shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materialityoccur as a result thereof, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) the Administrative Agent shall have received such legal opinions, board resolutions, secretary’s certificates, directors or officer’s certificates (as applicable) and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 (unless otherwise agreed by the Administrative Agent in its reasonable discretion); provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each such notice shall specify (A) the date on which the Opco Borrower proposes that the Incremental Revolving Increases Commitments or the Incremental Term Loans, as applicable, shall terminate be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Credit Termination Date;Commitments or Incremental Term Loans, as applicable, being requested.
(fb) No Subsidiary shall be a borrower or a guarantor under any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingunless such Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or been a borrower with respect to, for as applicable, the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Obligations. Each Incremental Term Facility Revolving Commitment shall be on terms and pursuant to documentation applicable to the existing Revolving Commitments. The Incremental Term Loans (i) if made as an increase in the principal amount of any existing tranche of Term Loans, shall have terms identical to those applicable to such Term Loans, (ii) shall rank pari passu or junior in right of payment with the Revolving Loans, (iii) shall not mature earlier than the Latest Maturity Date (but may have amortization and/or customary prepayments prior to such date); provided that the foregoing requirement shall not apply to the extent such Debt constitutes a customary bridge facility, so long as the long-term Debt into which such customary bridge facility is to be agreed between converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (iv) except as set forth above, shall be treated substantially the same (as reasonably determined by the Opco Borrower and the applicable lenders providing such Incremental Administrative Agent) as (and in any event, no more favorably than) the Term FacilityLoans; provided that such terms either (Ax) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Latest Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Latest Maturity Date and (taken as a wholey) at the time of incurrence or effectiveness or Incremental Term Loans may have different pricing and economics (B) are not materially more restrictive (excluding including, without limitation, with respect to upfront fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption termsinterest rate) than the terms under those Term Loans, and (v) will accrue interest at rates determined by the Opco Borrower and the lenders providing such Incremental Term Loans. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Lender holding such Incremental Revolving Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Lender holding such Incremental Revolving Commitment, and each such Lender holding such Incremental Revolving Commitment shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Facility when taken Loans and participations Swingline Loans outstanding on such date as a whole shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Swingline Loans will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Opco Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Facility, in each case advising the Lenders of the details thereof and, in each casethe case of effectiveness of any Incremental Revolving Commitments, as reasonably determined of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to this Section 2.20(b).
(c) Incremental Facilities may be provided by the Borrower and the Administrative Agent one or more existing Lenders (except for covenants or other provisions provided that no existing Lender shall have (x) applicable only an obligation to periods after the latest final maturity provide all or any portion of the Revolving Credit any Incremental Facility unless it so agrees in writing as provided in this Section 2.20 or (y) the right to provide all or any portion of any Incremental Facility) and/or by one or more other banks, financial institutions or other institutional lenders or investors (other than an Ineligible Institution), in each case as are incorporated into requested by the Opco Borrower (any such other bank, financial institution or other institutional lender or investor being called an “Additional Lender”); provided that the Administrative Agent, the L/C Issuers and the Swingline Lenders shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender or Additional Lender providing such Incremental Facility, to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement for pursuant to an amendment or amendment and restatement (each, an “Incremental Amendment”) of this Agreement and, as appropriate, the benefit other Loan Documents, executed by the Opco Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of all existing Lenders (which any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be accomplished without further amendment voting requirements))necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Opco Borrower, to effect the provisions of this Section. The effective date Opco Borrower will use the proceeds of the Incremental Facility Facilities for any purpose not prohibited by this Agreement.
(d) This Section 2.20 shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lenderprovisions in Section 2.18(d) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein or Section 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 3 contracts
Samples: Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Cummins Inc)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments The Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days prior from time to the desired effective date of such increase (the “Revolver Increase” and together with any time, request Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained Commitments in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming effect thereto, the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) amount of Incremental Commitments established at or (b) hereof immediately prior to such Revolver Increase) shall time does not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio $100,000,000. Such notice shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause set forth (i) the amount of the Incremental Commitments being requested (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) which shall be deemed to be used before capacity under clause (i) in minimum increments of $500,000 and (II) loans may be incurred under clauses (ia minimum amount of $5,000,000), (ii) and the date on which such Incremental Commitments are requested to become effective (iiiwhich shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree), and proceeds from any such incurrence under clauses (i), (iiiii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iiiiv) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any request for Incremental Term Facility onlyLoan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may also rank junior seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in right of payment and be secured on a junior basis with the Revolving Loans, its sole discretion) or may be unsecured;any Additional Lender.
(cb) immediately prior It shall be a condition precedent to and after giving effect to such the effectiveness of any Incremental Facility, Commitment that (i) no Default or Event of Default shall have occurred and be continuing; provided continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that if all Incremental Commitments have been fully funded and without netting the proceeds of the any Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(aLoans), shall not exceed 2.75:1.00, (jiii) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 Article III and in the each other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they Document shall be true and correct in all material respects (where not already qualified by materiality, otherwise or in all respects, if qualified as to materiality) on and as of the date such earlier Incremental Commitments become effective (or if such representation and warranty relates to another date; provided that if , such other date) and (iv) the proceeds terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).
(c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (except for covenants or other provisions i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (xii) applicable only the average life to periods after the latest final maturity of the Revolving Credit Facility Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or (yjunior to) as are incorporated into this Agreement for the benefit Tranche B Term Loans in right of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date payment and with respect to security and the borrower and guarantors of the Incremental Facility Term Loans shall be agreed upon by the same as the Borrower and Guarantors with respect to the Lenders providing Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental FacilityTerm Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Upon Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder).
(d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness thereofof each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, Schedule 2.2 shall without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.
(e) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed amended to reflect any Revolver Increase have assigned to each Incremental Revolving Credit Lender in respect of such increase, and the new each such Incremental Revolving Credit Lender (orwill automatically and without further act be deemed to have assumed, if applicablea portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Loans each Lender shall have outstanding its Percentage Credit Percentage. If, on the date of all such increase, there are any Revolving Loans outstanding under outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Commitments. Notwithstanding anything herein Lenders according to their Revolving Credit Percentages (after giving effect to the contrary, no Lender shall have any obligation to participate increase in any Incremental Facility and no Lender’s Revolving Credit Commitment Commitments), which prepayment shall be increased without its consent theretoaccompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and each Lender may at its option, unconditionally and without cause, decline pro rata payment requirements contained elsewhere in this Agreement shall not apply to participate in any Incremental Facilitythe transactions effected pursuant to the immediately preceding sentence.
Appears in 3 contracts
Samples: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Incremental Facilities. The Borrower may (a) add The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more incremental tranches of term loan facilities loans hereunder (an “Incremental Term Facility” and collectively, the loans borrowed thereunder “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (collectively, the “Revolver IncreaseIncremental Revolving Commitments” and and, together with any Incremental Term Facilities, collectivelyLoans, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
provided that (ai) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not exceed be earlier than the sum of (i) $300,000,000 less Maturity Date in effect at the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to time such Incremental Facility (assuming the aggregate Revolving Increase is fully funded)Facilities are entered into, the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) such tranche of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower Facilities shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(civ) immediately prior to and after giving effect to such Incremental FacilityFacilities shall not be, no Event and shall not be permitted to be, guaranteed by any Subsidiary of Default shall have occurred Holdings that is not a Guarantor under this Agreement and be continuing; provided that if (v) the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionterms, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition conditions and the funding of documentation governing such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments Facilities (including, for the avoidance of doubtwithout limitation, customary amortization paymentsall representations, excess cash flow prepaymentscovenants, defaults, guaranties and prepayments with debtremedies, asset sale and casualty insurance proceedsbut excluding economic terms);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) at providing such Incremental Facilities, than those terms and conditions applicable to the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in Lenders with respect to the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Loans (except (i) for covenants or other provisions (x) applicable only to periods after the latest final maturity Maturity Date of the Revolving Credit Facility Loans or (yii) as to the extent such more favorable terms are incorporated into this Agreement the Loan Documents for the benefit of all existing Lenders (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without further amendment voting requirementsthe consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The effective date Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Facility Amendments. The effectiveness of any Incremental Amendment shall be agreed upon by subject to the Borrower satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the Lenders providing the part of any Lender to provide Incremental Facility. Upon the effectiveness thereofFacilities, Schedule 2.2 at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed amended to reflect any Revolver Increase be a representation and warranty by each Borrower on the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans date on which such Incremental Facilities are entered into that the conditions set forth in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein this Section 2.20 and in Section 4.2 to the contrary, no Lender shall establishment of Incremental Facilities have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitybeen satisfied as of such date.
Appears in 3 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. The Borrower may (a) The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and the any loans borrowed thereunder made pursuant to an Incremental Facility, “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of no Incremental Equivalent Debt issued, incurred or otherwise obtained Commitment in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds respect of any Incremental Facility are used substantially concurrently may be in an amount that is less than $5,000,000 (or such lesser amount to finance which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Permitted Acquisition lender providing all or similar investment part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted hereunder whose consummation is not conditioned on the availability ofherein (including with respect to margin, or on obtainingpricing, third party financing (a “Limited Condition Acquisition”maturity and fees), then the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the election option of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only (x) not be required materially more restrictive to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect its Restricted Subsidiaries (as determined by the Borrower in good faith and faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent acting reasonably(i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or issuance (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower in good faith);
(v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term Loans in right of payment and with respect to security and that are incurred following the Administrative Agent Amendment No. 1 Effective Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans (except for covenants with the Effective Yield of all Initial Term Loans calculated based on the Effective Yield of the Additional Initial Term Loans) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or other provisions LIBO Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (xthis clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable only to periods after such Initial Term Loan;
(vi) subject to the latest Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the any Incremental Facility shall be agreed upon by no shorter than the Borrower and remaining Weighted Average Life to Maturity of the Lenders providing Initial Term Loans on the date of incurrence of such Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender Facility (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after without giving effect to its Revolving Loans each Lender shall have outstanding its Percentage any prepayments of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Initial Term Loans);
(viii) [reserved];
(ix) [reserved];
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days elect to request, prior to the desired effective date of Latest Maturity Date, additional term loans hereunder (any such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyadditional term loans, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) Loans” and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitmentcommitments therefor, the “Incremental Commitments”); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of provided that (i) $300,000,000 less the total aggregate initial principal amount (as of the date of incurrence or availability thereof) of such requested Incremental Loans or Incremental Commitments, when added to the aggregate principal amount of Incremental Equivalent Debt issuedincurred at such time, incurred or otherwise obtained in reliance shall not exceed the Incremental Limit on this clause (i)such date, (ii) an the total aggregate principal amount such that, after giving Pro Forma Effect to of such Incremental Facility (assuming Loans or Incremental Commitments shall, unless otherwise approved by the aggregate Revolving Increase is fully funded)Administrative Agent, not be less than a minimum principal amount of $10,000,000 or, if less, the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered remaining amount permitted pursuant to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (IIiii) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from the incurrence of any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction Incremental Loans or series Incremental Commitments is permitted pursuant to the terms of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));Revolving Indebtedness Documents.
(b) Each such notice shall specify (i) the date (each, an “Incremental Closing Date”) on which the Borrower proposes that the Incremental Facilities Loans shall be made, which shall be a date not less than 10 Business Days (or such lesser number of days as may be acceptable to the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and related guarantees (i) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such Incremental Commitments be allocated (each, an “Incremental Lender”) and the amounts of such allocations; provided that (x) no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed) and (y) any Lender approached to provide all or a portion of any Incremental Loans may rank pari passu elect or decline, in right its sole discretion, to provide such Incremental Loans.
(c) The terms of payment each incurrence of Incremental Loans or Incremental Commitments shall be determined by the Borrower and be the applicable Incremental Lenders; provided that:
(i) Incremental Loans or Incremental Commitments (x) secured on a pari passu basis with the Revolving Loans, Obligations shall not mature earlier than the Latest Maturity Date and in the case Weighted Average Life to Maturity of any such Incremental Term Facility only, may also rank junior in right Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of payment the Loans outstanding as of such Incremental Closing Date and be (y) either secured on a junior basis with to the Revolving Loans, Obligations or may be unsecured;
(c) immediately prior to and unsecured shall not mature earlier than 91 days after giving effect to the Latest Maturity Date of the Loans outstanding as of such Incremental FacilityClosing Date (except in the case of customary bridge loans which, subject to customary conditions (including no Event payment or bankruptcy event of Default shall have occurred and default), would either automatically be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be converted into or required to be satisfied on exchanged for permanent refinancing which does not mature earlier than 91 days after the LCT Test Date; provided, however, that on the date Latest Maturity Date of the consummation of such Limited Condition Acquisition and the funding Loans outstanding as of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Closing Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) Credit Party agrees at the time of incurrence thereof to take all such actions required to cause such conversion or effectiveness exchange) and shall require no amortization, prepayments, redemptions, repurchases or similar required payments (Bother than customary offers to purchase in connection with a change of control or cross-acceleration) are not materially more restrictive prior to its stated final maturity date;
(excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption termsii) than the terms under those in All-In Yield of any Incremental Loans incurred within twelve (12) months after the Revolving Credit Facility when taken as a whole and, in each case, as reasonably Closing Date shall be determined by the Borrower and the Administrative Agent applicable Incremental Lenders (except for covenants or other provisions (x) provided that the All-In Yield applicable only to periods after such Incremental Loans shall not be greater than the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement All-In Yield for the benefit of all existing Lenders Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum); (which may iii) (A) if such Incremental Loans are secured, they will be accomplished without further amendment voting requirements)). The effective date of secured solely by Collateral on pari passu or junior (but in no event senior) basis with the Obligations and, if necessary, will be subject to an Acceptable Intercreditor Agreement and (B) no Incremental Facility Loans shall be agreed upon guaranteed by any Person other than the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Subsidiary Guarantors;
Appears in 2 contracts
Samples: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower Representative shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to a Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the loans borrowed thereunder Incremental Revolving Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinance other Indebtedness), an amount that could then be Incurred in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower Representative pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower Representative and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan under the applicable Tranche of Term Loans.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrowers and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower Representative and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Parent Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower Representative’s option) junior basis by the same Collateral securing the Initial Term Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the extent compliant therewith) before capacity under clauses (ii) ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ian Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment and with or (at the Borrower Representative’s option) junior to the Initial Term Loans, (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Initial Term Loans and (D) so long as any Initial Term Loans are outstanding, no Incremental Commitment Amendment may provide for any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to, the Termination Date (as defined in the Senior ABL Facility Agreement); (iv) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial Term Loan Maturity Date or a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower Representative and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any term loans Incurred by the Borrowers under any Incremental Term Loan Commitment made on or prior to the date that is 6 months after the Closing Date are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the Lenders under the Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations”, “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable, (4) in the case of an Incremental Revolving Commitment or an Incremental Letter of Credit Commitment, for amendments and modifications necessary or desirable to account for the Incremental Revolving Commitments and Incremental Letter of Credit Commitments to be included in this Agreement, in each case on terms agreed by the Borrower Representative and the Lenders providing such Commitments (including any swingline lender or issuing lender) and (5) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Facility onlyLoans; and (vii) the other terms and documentation in respect thereof, may also rank junior to the extent not consistent with this Agreement as in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately effect prior to and after giving effect to such the Incremental FacilityCommitment Amendment, no Event of Default shall have occurred and otherwise be continuingreasonably satisfactory to the Borrower Representative; provided that if to the proceeds extent such terms and documentation are not consistent with, in the case of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the BorrowerTerm Loans, the foregoing condition in this clause terms and documentation governing the Initial Term Loans (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier datepermitted by clauses (iv), in which case (v) or (vi) above), they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently reasonably satisfactory to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith Representative and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAgent.
Appears in 2 contracts
Samples: Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.)
Incremental Facilities. The Borrower may (a) add may, by written notice to the Administrative Agent from time to time during the Incremental Availability Period, request the establishment of one or more incremental term loan facilities (facilities, for the purposes of funding a Permitted Subsequent Funding Use, in an “aggregate principal amount not to exceed the Incremental Term Facility” and Facility Amount to be documented as an increase in the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate total amount of the Revolving Credit Commitments Loans under this Agreement; provided that (i) there shall not be more than three incremental term loan facilities per calendar year and (ii) each incremental term loan facility shall be in a minimum amount of $10,000,000, in each case, unless otherwise agreed to by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or Lenders. Each Lender shall participate in such other form reasonably acceptable to incremental term loan facilities if each of the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, thatfollowing conditions have been satisfied:
(a) to the aggregate amount extent that the proceeds of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i)incremental term loan facility are to be used to finance an Additional Covered Project, (iiw) such Additional Covered Project shall have been approved by the Lenders in their sole discretion, (x) the applicable Restricted Project Company and the Administrative Agent shall have agreed in writing that such Restricted Project Company shall be an amount Additional Covered Project Company hereunder, (y) the Borrower or the applicable Additional Project Company shall have entered into Project Documents in respect of such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered Additional Covered Project in form and substance acceptable to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofin its sole discretion, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (Iz) the Borrower and the Administrative Agent shall be deemed to have used capacity under clause (i) (agreed in writing as to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed Project Payoff Amount with respect to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii))Additional Covered Project;
(b) no Default or Event of Default exists as of the Incremental Facilities and related guarantees may rank pari passu in right effective date of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, such incremental term loan facilities or may be unsecuredwould exist after giving effect thereto;
(c) immediately prior no development, event or circumstance that has had or could reasonably be expected to and after giving effect to such Incremental Facility, no Event of Default have a Material Adverse Effect shall have occurred and be continuing; provided that if the proceeds , or shall occur as a result thereof as of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the effective date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuingincremental term loan facilities;
(d) each of the representations and warranties of each Loan Party set forth in Section 6 and in the other Loan Financing Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of the effective date of such incremental term loan facilities (except where not already qualified by materialitymateriality or Material Adverse Effect, otherwise in which case, in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans the Lenders shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Datereceived Investment Committee approval for such incremental term loan facilities;
(f) the other applicable conditions set forth in Section 4.04 shall have been satisfied as of the effective date of such incremental term loan facilities; and
(g) the terms of any Incremental Term Facility may permit voluntary such incremental facility shall be identical to those of the existing Loans, unless otherwise agreed by the Administrative Agent and customary mandatory prepayments (including, for the Lenders. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in no Lender shall be required to fund any incremental term loan facility under this Section 2.162.13 unless each of the foregoing conditions shall have been satisfied and the Lenders shall have otherwise approved such incremental term loan facility. In connection with any such incremental term loan facility, any Incremental Term Facility this Agreement and the other Financing Documents shall be on terms and pursuant amended as necessary to documentation effectuate such increase, such amendments to be agreed between acceptable to the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith Lenders and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitytheir reasonable discretion.
Appears in 2 contracts
Samples: Credit Agreement (Fuelcell Energy Inc), Credit Agreement (Fuelcell Energy Inc)
Incremental Facilities. The Parent Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments at any time, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable notice to the Administrative Agent) to Agents (whereupon the Administrative Agent at least five shall promptly deliver a copy to each of the Lenders), request the addition of new credit facilities (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender consisting of a new tranche of term loans (or additional Revolving Credit Commitment for an existing Lenderthe “Incremental Term Loans”); provided that at the time that any such Incremental Term Loans are made (and after giving effect thereto) no Default shall exist and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedParent Borrower shall be in compliance with Sections 6.13 and 6.14, however, that:
(a) the aggregate amount of all determined on a pro forma basis as if such Incremental Term Loans had been outstanding throughout the relevant four-fiscal-quarter period (in the case of Section 6.13) or on the last day of the most recent fiscal quarter (in the case of Section 6.14) for testing compliance therewith. The Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the shall be in an aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained not exceeding (in reliance on this clause the aggregate) $200,000,000 (iand each tranche shall not be less than $50,000,000), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis of security with the Revolving Loans and the Term Loans, (iii) shall not mature earlier than the Tranche B Maturity Date (but may, subject to clause (iv) below, have scheduled amortization prior to such date), (iv) shall not have a weighted average life that is shorter than that of the Tranche B Term Loans, (v) shall not accrue interest at a rate or rates in excess of the interest rates applicable to the Tranche B Term Loans and (vi) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the case Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that (a) the terms and conditions applicable to Incremental Term Loans maturing after the Tranche B Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche B Maturity Date and (b) subject to clause (v) above, the Incremental Facilities may be priced differently than the Term Loans and the Revolving Loans. Such notice shall set forth the requested amount of Incremental Term Loans. Each existing Lender shall be offered the opportunity, but shall not be required, to provide a ratable share of any Incremental Term Facility only, may also rank junior Loans. In the event that existing Lenders provide commitments in right of payment and be secured on a junior basis with an aggregate amount less than the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds total amount of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at Term Loans requested by the election of the Parent Borrower, the foregoing condition Parent Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Additional Lender”) to extend commitments to provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans shall become Commitments under this clause Agreement pursuant to an amendment (can “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agents. The Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agents, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall only be required subject to be satisfied on the LCT Test Date; provided, however, that satisfaction on the date thereof of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties conditions set forth in Section 6 and 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents such Section 4.02 shall be and remain true and correct in all material respects on deemed to refer to the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they . No Lender shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently obligated to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all provide any Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityunless it so agrees.
Appears in 2 contracts
Samples: Credit Agreement (Mosaic Co), Credit Agreement (Mosaic Co)
Incremental Facilities. The Borrower may (a) add The Lead Borrower may at any time or from time to time after the Effective Date, by notice to the Administrative Agent, request one or more incremental additional tranches of term loan facilities loans (which may take the form of an “Incremental increase in the principal amount of any existing tranche of Term Facility” and A-1 Loans (but not, for the loans borrowed thereunder avoidance of doubt, the Term A-2 Loans)) (the “Incremental Term Loans”) or (b) increase increases in the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of each such increase (the a “Revolver Increase” and together with any Incremental Revolving Commitment”; Incremental Term Facilities, collectively, Loans and Incremental Revolving Commitments are collectively referred to herein as the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedprovided that, howeverno Incremental Term Loans may be made and no Incremental Revolving Commitments may become effective unless, that:
(i) on the proposed date of the making of such Incremental Term Loans or the effectiveness of such Incremental Revolving Commitments, as applicable, (A) the conditions set forth in clauses (a) and (b) of Section 4.02 shall be satisfied or waived by the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to Required Lenders and the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance have received a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned certificate on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election behalf of the Borrower, the foregoing calculation Lead Borrower to that effect dated such date and executed by a Financial Officer of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date Lead Borrower and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (IB) the Lead Borrower shall be deemed to have used capacity under clause in compliance (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis pro forma basis, assuming full drawing under the applicable Incremental Facility) with the Revolving Loanscovenants contained in Section 5.13; provided that, and in the case of any Incremental Term Facility onlyFacilities the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, may also rank junior in right to the extent agreed by the Lenders providing such Incremental Facilities, (I) the representations and warranties the accuracy of payment and be secured on which are a junior basis with condition to the Revolving Loans, or funding of such Incremental Facilities may be unsecured;
limited to (c1) immediately prior customary specified representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Facilities), and (2) those representations of the acquired company in the applicable acquisition agreement that are material to the interests of the lenders under the Incremental Facilities and after giving effect if breached would give the Lead Borrower the right to terminate or refuse to close under the applicable acquisition agreement and (II) (x) at the time of the execution and delivery of the purchase agreement or other definitive documentation related to such Incremental FacilityLimited Condition Transaction, no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance continuing or shall occur as a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause result thereof and (cy) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition effectiveness and the funding making of any such Incremental FacilityFacilities, no Event of Specified Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents continuing or shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materialityoccur as a result thereof, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) the Administrative Agent shall have received such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility shall be in an integral multiple of $25,000,000 and be in an aggregate principal amount that is not less than $25,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each such notice shall specify (A) the date on which the Lead Borrower proposes that the Incremental Revolving Increases Commitments or the Incremental Term Loans, as applicable, shall terminate be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Credit Termination Date;Commitments or Incremental Term Loans, as applicable, being requested.
(fb) No Subsidiary shall be a borrower or a guarantor under any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingunless such Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, for as applicable, the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Obligations. Each Incremental Term Facility Revolving Commitment shall be on terms and pursuant to documentation applicable to the existing Revolving Commitments. The Incremental Term Loans (i) if made as an increase in the principal amount of any existing tranche of Term Loans, shall have terms identical to those applicable to such Term Loans, (ii) shall rank pari passu or junior in right of payment with the Revolving Loans, (iii) shall not mature earlier than the Latest Maturity Date (but may have amortization and/or customary prepayments prior to such date); provided that the foregoing requirement shall not apply to the extent such Debt constitutes a customary bridge facility, so long as the long-term Debt into which such customary bridge facility is to be agreed between converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (iv) except as set forth above, shall be treated substantially the same as (and in any event, no more favorably than) the Term A-1 Loans and (v) will accrue interest at rates determined by the Lead Borrower and the applicable lenders providing such Incremental Term Facility; provided that Loans. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Lender holding such terms either Incremental Revolving Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Lender holding such Incremental Revolving Commitment, and each such Lender holding such Incremental Revolving Commitment shall purchase from each Revolving Lender, at the principal amount thereof (A) reflect (together with accrued interest), such interests in the Revolving Loans and participations Swingline Loans outstanding on such date as determined shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Swingline Loans will be held by all the Borrower Revolving Lenders ratably in good faith and accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent acting reasonablyof any notice from the Lead Borrower referred to in Section 2.20(a) market terms and conditions (taken as a whole) at of the time effectiveness of incurrence or effectiveness or (B) are not materially more restrictive (excluding feesany Incremental Facility, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than in each case advising the terms under those in Lenders of the Revolving Credit Facility when taken as a whole details thereof and, in each casethe case of effectiveness of any Incremental Revolving Commitments, as reasonably determined of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to this Section 2.20(a).
(c) Incremental Facilities may be provided by the Borrower and the Administrative Agent any existing Lender (except for covenants or other provisions provided that no existing Lender shall have (x) applicable only an obligation to periods after the latest final maturity provide all or any portion of the Revolving Credit any Incremental Facility unless it so agrees in writing as provided in this Section 2.20 or (y) as are incorporated into the right to provide all or any portion of any Incremental Facility) or by other bank, financial institution or other institutional lender or investor (other than an Ineligible Institution) (any such other bank, financial institution or other institutional lender or investor being called an “Additional Lender”); provided that, the Administrative Agent and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Lender or Additional Lender providing such Incremental Facility, to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement for pursuant to an amendment or amendment and restatement (each, an “Incremental Amendment”) of this Agreement and, as appropriate, the benefit other Loan Documents, executed by the Lead Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of all existing Lenders (which any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be accomplished without further amendment voting requirements))necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section. The effective effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 and such other conditions as the parties thereto shall agree. The Lead Borrower will use the proceeds of the Incremental Facility Facilities for any purpose not prohibited by this Agreement.
(d) This Section 2.20 shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lenderprovisions in Section 2.18(d) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein or Section 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Credit Agreement (ESAB Corp), Credit Agreement (ESAB Corp)
Incremental Facilities. (a) The Borrower may (a) add on one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments occasions, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent) to , request the Administrative Agent at least five (5) Business Days prior to the desired effective date establishment of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesCommitments, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and provided that the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such any Incremental Facilities Commitments established hereunder shall not exceed the sum amount of additional Indebtedness permitted at the time such Incremental Commitments are established to be Incurred under Section 9.01(b)(1). Each such notice shall specify (i) $300,000,000 the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance Administrative Agent) after the date on this clause (i), (ii) an amount which such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase notice is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant and (ii) the amount of the Incremental Commitments being requested (it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and otherwise satisfy the requirements of Section 8.05(a) or 12.04(b)(i)).
(b) hereof immediately prior The terms and conditions of any Incremental Commitments and the Incremental Loans to such Revolver Increase) be made thereunder shall not exceed 3.50 be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to 1.00those of the Commitments and the Loans; provided that (i) if the proceeds Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the extent necessary to eliminate such excess, (ii) the Average Life of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on Loans shall be no shorter than the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election remaining Average Life of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date Loans and (iii) the Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the date such Incremental Loan is made. Any Incremental Commitments established pursuant to an amount equal to all voluntary prepayments ofIncremental Facility Agreement that have identical terms and conditions, repurchases and/or cancellations (in an amount equal to the actual amount so repaidand any Incremental Loans made thereunder, repurchased and/or canceled) shall be designated as a separate Class of Incremental Term Loans, Commitments and Incremental Equivalent Debt and Revolving Loans (in the case for all purposes of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;this Agreement.
(c) immediately prior The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and after giving effect to delivered by the Borrower, each Incremental Lender providing such Incremental Facility, Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that continuing on the date of the consummation of effectiveness thereof, both immediately prior to and immediately after giving effect to such Limited Condition Acquisition Incremental Commitments and the funding making of such Incremental Facility, no Event of Default under Section 9.01(a)Loans thereunder, (jii) or on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (kA) hereof shall have occurred and be continuing;
(d) each in the case of the representations and warranties set forth qualified as to materiality, in Section 6 all respects and in the other Loan Documents shall be and remain true and correct (B) otherwise, in all material respects respects, in each case on the effective date and as of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)date, except in the case of any such representation and warranty that expressly relates to the extent the same expressly relate to an earlier a prior date, in which case they such representation and warranty shall be so true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such earlier date; provided that if prior date and (iii) the proceeds Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (other than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Incremental Facility are used substantially concurrently Administrative Agent, to finance a Limited Condition Acquisition, then at give effect to the election provisions of the Borrower, the foregoing condition in this clause Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall only be required deemed to be satisfied on the LCT Test Date; provided, however, that on the date a “Lender” (and a Lender in respect of Commitments and Loans of the consummation applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, a Lender (and a Lender in respect of such Limited Condition Acquisition Commitments and the funding Loans of the Incremental Facilityapplicable Class) hereunder and shall be bound by all agreements, only acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans of the Specified Representations shall have to be true applicable Class) hereunder and correct in all material respects (without duplication of materiality qualifiers);under the other Loan Documents.
(e) (i) all Subject to the terms and conditions set forth herein and in the applicable Incremental Term Loans Facility Agreement, each Lender holding an Incremental Commitment of any Class shall have make a maturity date no earlier than loan to the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate Borrower in an amount equal to such Incremental Commitment on the Revolving Credit Termination Date;date specified in such Incremental Facility Agreement.
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for The Administrative Agent shall notify the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined Lenders promptly upon receipt by the Borrower in good faith and the Administrative Agent acting reasonablyof any notice from the Borrower referred to in Section 2.08(a) market terms and conditions (taken as a whole) at of the time effectiveness of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andany Incremental Commitments, in each case, as reasonably determined by case advising the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity Lenders of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness details thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities So long as no Event of Default under Section 9.1 (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”a) or (bf) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I exists or would arise therefrom (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of Term Loans made pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to Incremental Commitment will be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance consummate a Limited Condition Acquisition, then at the election requirement that there be no Event of the Borrower, the foregoing condition in this clause Default under Section 9.1(a) or (cf) shall only be required to be satisfied on the LCT Test date on which definitive agreements with respect to such Limited Condition Acquisition are entered into), the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective the greater of (A) $300.0 million and (B) the maximum aggregate principal amount (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the incurrence thereof and the application of the net proceeds therefrom (or as of the date of the initial borrowing of such Indebtedness after giving pro forma effect to the incurrence of the entire committed amount of such Indebtedness)) that can be incurred without exceeding a Senior Secured Indebtedness to EBITDA Ratio for the Borrower of 3.50 to 1.00 (it being understood that for purposes of determining compliance under this clause (i), any Indebtedness incurred under this clause (i) and Section 8.1(b)(i) (whether or not secured), other than Revolving Credit Agreement Indebtedness, will be included in the amount of Senior Secured Indebtedness for purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that on (i) (A) the date Incremental Commitments will not be guaranteed by any Subsidiary of the consummation of such Limited Condition Acquisition Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the funding of Borrower’s option) junior basis by the same Collateral securing the Initial Term Loans (so long as any such Incremental FacilityCommitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, no Event of Default under Section 9.01(aas applicable), (jB) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (kat the Borrower’s option) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except junior to the extent the same expressly relate to an earlier date, in which case they shall be true Initial Term Loans and correct in all material respects (where not already qualified by materiality, otherwise in all respectsC) as of such earlier date; provided that if the proceeds of the no Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause Commitment Amendment may provide for (dI) shall only be required any Incremental Commitment or any Incremental Loans to be satisfied on secured by any Collateral or other assets of any Loan Party that do not also secure the LCT Test Date; providedTerm Loans and (II) so long as any Initial Term Loans are outstanding, however, any mandatory prepayment provisions that on do not also apply to the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects Term Loans (without duplication of materiality qualifiers);
(e) (i) all other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall have be subject to junior prepayment provisions) on a maturity date no earlier pro rata basis (or otherwise provide for more favorable prepayment treatment for the Initial Term Loans than such Incremental Term Loans as contemplated by the Revolving Credit Termination Date and proviso appearing in Section 4.4(c)) (iiother than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fbelow) any Incremental Term Facility Loans may permit voluntary and customary mandatory prepayments provide for more favorable amortization payments than the Initial Term Loans, (including, for ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower maturity date and the applicable lenders providing weighted average life to maturity of such Incremental Term Facility; provided that such terms Loan Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) shorter weighted average life to maturity than the terms under those in Maturity Date of the Revolving Credit Facility when taken as a whole and, in each caseInitial Term Loans or the weighted average life to maturity of the Initial Term Loans, as reasonably applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Administrative Agent applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (except for covenants A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Maturity Date of the Initial Term Loans and weighted average life to maturity of the Revolving Credit Facility Initial Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans (except to the extent permitted by clause (iii), (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAdministrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities So long as no Event of Default under Section 9.1 (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”a) or (bf) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I exists or would arise therefrom (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of Term Loans made pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to Incremental Commitment will be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance consummate a Limited Condition Acquisition, then at the election requirement that there be no Event of the Borrower, the foregoing condition in this clause Default under Section 9.1(a) or (cf) shall only be required to be satisfied on the LCT Test date on which definitive agreements with respect to such Limited Condition Acquisition are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective the greater of (A) $300.0 million and (B) the maximum aggregate principal amount (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the incurrence thereof and the application of the net proceeds therefrom (or as of the date of the initial borrowing of such Indebtedness after giving pro forma effect to the incurrence of the entire committed amount of such Indebtedness)) that can be incurred without exceeding a Senior Secured Indebtedness to EBITDA Ratio for the Borrower of 3.50 to 1.00 (it being understood that for purposes of determining compliance under this clause (i), any Indebtedness incurred under this clause (i) and Section 8.1(b)(i) (whether or not secured), other than Revolving Credit Agreement Indebtedness, will be included in the amount of Senior Secured Indebtedness for purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that on (i) (A) the date Incremental Commitments will not be guaranteed by any Subsidiary of the consummation of such Limited Condition Acquisition Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the funding of Borrower’s option) junior basis by the same Collateral securing the Tranche B Term Loans (so long as any such Incremental FacilityCommitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, no Event of Default under Section 9.01(aas applicable), (jB) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (kat the Borrower’s option) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except junior to the extent the same expressly relate to an earlier date, in which case they shall be true Tranche B Term Loans and correct in all material respects (where not already qualified by materiality, otherwise in all respectsC) as of such earlier date; provided that if the proceeds of the no Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause Commitment Amendment may provide for (dI) shall only be required any Incremental Commitment or any Incremental Loans to be satisfied on secured by any Collateral or other assets of any Loan Party that do not also secure the LCT Test Date; providedTerm Loans and (II) so long as any Tranche B Term Loans are outstanding, however, any mandatory prepayment provisions that on do not also apply to the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects Term Loans (without duplication of materiality qualifiers);
(e) (i) all other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall have be subject to junior prepayment provisions) on a maturity date no earlier pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche B Term Loans than such Incremental Term Loans as contemplated by the Revolving Credit Termination Date and proviso appearing in Section 4.4(c)) (iiother than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fbelow) any Incremental Term Facility Loans may permit voluntary and customary mandatory prepayments provide for more favorable amortization payments than the Tranche B Term Loans, (including, for ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower maturity date and the applicable lenders providing weighted average life to maturity of such Incremental Term Facility; provided that such terms Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche B Term Loan Maturity Date or the weighted average life to maturity of the Tranche B Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) shorter weighted average life to maturity than the terms under those in Tranche B Term Loan Maturity Date or the Revolving Credit Facility when taken as a whole and, in each caseweighted average life to maturity of the Tranche B Term Loans, as reasonably applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Administrative Agent applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Tranche B Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche B Term Loans and the Incremental Term Loans, (except for covenants A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche B Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Tranche B Term Loans that became effective subsequent to the First Incremental Amendment Effective Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche B Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Tranche B Term Loan Maturity Date and weighted average life to maturity of the Revolving Credit Facility Tranche B Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche B Term Loans (except to the extent permitted by clause (iii), (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing Administrative Agent.
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be deemed amended incurred pursuant to reflect any Revolver Increase Section 2.1(b) or (c) (as applicable) and accordingly the new Lender requirements of this Section 2.6, including clause (oriv) of the first proviso of Section 2.6(d), if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent not apply thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Incremental Commitment Amendment (Warner Music Group Corp.), Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) The Borrower may may, at any time, on one or more occasions on or after the Funding Date pursuant to an Incremental Amendment (ai) add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such commitments, “Incremental Term Commitments” and any such new Class or increase, an “Incremental Term Facility” and the loans borrowed thereunder any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) increase the aggregate amount of the Revolving Credit Commitments by delivering (an Increase Request substantially “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the form attached hereto as Exhibit I Incremental Available Amount; provided that,
(i) no Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in such other form its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) except as otherwise permitted herein the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be (x) reasonably acceptable to the Administrative AgentAgent or (y) only applicable to the Administrative Agent at least five period after the Latest Maturity Date,
(5v) Business Days prior each Incremental Revolving Facility shall have the same terms, other than upfront fees, as the Revolving Facility,
(vi) the final maturity date with respect to any Class of Incremental Term Loans shall be no earlier than the desired effective date Maturity Date,
(vii) the Weighted Average Life to Maturity of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesFacility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof),
(viii) subject to clauses (vi) and (vii) above, collectivelyany Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, the “Incremental Facilities”pricing (including interest rate and fees) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(A) each Incremental Term Facility or Incremental Revolving Facility shall rank (i) on a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, pari passu basis with or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal junior basis to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt Loans and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured (ii) on a pari passu basis with the Term Loans and Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior Loans in right of payment security or shall be unsecured and be secured on a junior basis with the Revolving Loans, or (B) no Incremental Facility may be unsecured;(x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(cxi) (A) subject to Section 1.12, no Default or Event of Default shall exist immediately prior to and or after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (cB) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in Section 6 this Agreement and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already or if qualified by materialitymateriality or Material Adverse Effect, otherwise in all respects) on and as of the date such Incremental Facility becomes effective with the same effect as though such representations and warranties had been made on and as of such earlier date; provided that, to the extent that if the proceeds of the Incremental Facility are used substantially concurrently any representation and warranty specifically refers to finance a Limited Condition Acquisitiongiven date or period, then at the election of the Borrower, the foregoing condition in this clause (d) it shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication as of materiality qualifiers)such date or for such period;
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fxii) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either participate (A) reflect (in any voluntary prepayment of Term Loans as determined by the Borrower set forth in good faith Section 2.11(a) and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and(c), in each case, to the extent provided in such Sections,
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as reasonably determined any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which ends on the last day of such Interest Period.
(b) Incremental Commitments may be provided by the Borrower and any existing Lender, or by any other eligible assignee (any such other lender being called an “Incremental Lender”); provided that, the Administrative Agent (except and, in the case of any Incremental Revolving Facility, each Issuing Bank) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for covenants an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other provisions documents as it shall reasonably require from such Incremental Lender, (xiii) applicable only the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to periods the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower and (B) to the extent applicable, certifying that the condition set forth in clause (a)(xi) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.20:
(i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after the latest final maturity giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit Facility or shall be held on a pro rata basis on the basis of their respective Revolving Commitments (yafter giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); and
(ii) as are incorporated into the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement for shall not apply to the benefit of all existing Lenders transactions effected pursuant to this clause (which may be accomplished without further amendment voting requirementsii)). The effective .
(f) On the date of effectiveness of any Incremental Revolving Facility, the Incremental Facility maximum amount of LC Exposure permitted hereunder shall be increase by an amount, if any, agreed upon by the Borrower Borrower, the Administrative Agent and the relevant Issuing Bank.
(g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20 and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Facility so agree, the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 availability thereof shall be deemed amended subject to reflect customary “SunGard” or “certain funds” conditionality.
(i) This Section 2.20 shall supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, no Lender shall have any obligation to participate in upon the effectiveness of any Incremental Facility and no Lender’s Revolving Credit Commitment Amendment, this Agreement shall be increased amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of or be consistent with this Section 2.20. Any such amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) but without its the consent theretoof any other Lender (other than the Incremental Lenders providing such Incremental Facility), and each Lender may at its option, unconditionally and without cause, decline furnished to participate in any Incremental Facilitythe other parties hereto.
Appears in 2 contracts
Samples: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)
Incremental Facilities. The Borrower may from time to time elect to increase the Revolving Commitments or make additional Revolving Commitments (asuch increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) add or enter into one or more incremental term loan facilities tranches of Term Loans or increase outstanding Term Loans (each an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver IncreaseLoan” and together with any the Incremental Term Facilities, collectively, the Revolving Facility hereinafter collectively referred to as “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount ,” as applicable), in each case in minimum increments of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided$10,000,000 so long as, howeverafter giving effect thereto, that:
(a) the aggregate amount of all such Incremental Facilities shall incurred pursuant to this Section 2.20 does not exceed the sum of (iI) the sum of (x) $300,000,000 less 450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (iI), the “Fixed Incremental Incurrence Basket”) and (iiII) an amount such that, any additional amounts so long as immediately after giving Pro Forma Effect pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the aggregate Revolving Increase is fully funded)use of proceeds thereunder, the Total First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term A Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofother than, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loanssuch unsecured indebtedness, to the extent accompanied by a permanent reduction Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the Revolving Credit Commitments therefordate of effectiveness of such Incremental Facility (this clause (II), in each case, not made with the proceeds of any long-term indebtedness (excluding, for “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, Revolving Loans) any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (it being understood each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that (I) no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be deemed established pursuant to have used capacity an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agent (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under clause this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (ia) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and Section 4.02 shall be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to satisfied both before and after giving effect to such Incremental Facility, no Event of Default Facility or waived by the Required Lenders and the Administrative Agent shall have occurred received a certificate to that effect dated such date and be continuingexecuted by a Financial Officer of the Borrower; provided that that, if the proceeds of the such Incremental Facility are used substantially concurrently to finance consummate a Limited Condition Permitted Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth required to be made in Section 6 and in the other Loan Documents connection with such Incremental Facility shall be limited to the Specified Representations and remain true and correct in all material respects (ii) the Administrative Agent shall have received (i) documents consistent with those delivered on the effective date Closing Date and the Restatement Effective Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) Flood Documentation reasonably requested by the Administrative Agent (and in form and substance reasonably acceptable to the Administrative Agent) with respect to any Mortgaged Properties.
(a) The proceeds of any Incremental Term Loans will be used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Increases Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. 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 terminate on not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The terms and provisions of the Incremental Facilities made pursuant hereto shall be as follows:
(i) the terms and provisions of the Incremental Revolving Credit Termination DateCommitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(fii) any the terms and provisions of the Incremental Term Facility may permit voluntary Loans and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except Incremental Revolving Commitments incurred as otherwise provided in this Section 2.16, any Incremental Term Facility a separate tranche shall be on terms and pursuant to documentation to be agreed between provisions as set forth in this Agreement or as otherwise determined by the Borrower and the applicable lenders providing Lenders under such Incremental Term FacilityFacility and set forth in the related Incremental Amendment and reasonably satisfactory to the Administrative Agent; provided that to the extent such terms either and provisions are not consistent with the applicable Initial Term A Facility or Initial Revolving Facility, as applicable, (Aother than pricing and customary “soft call” protection in respect of syndicated term “B” loans), they shall be, taken as a whole, on terms no more favorable to the Lenders under such Incremental Facility than the terms and provisions of this Agreement (except for covenants and events of default applicable only to periods after the Latest Maturity Date) reflect existing at the time of incurrence of such Incremental Facility (as determined by the Borrower in good faith and its reasonable discretion); provided, further, that:
(A) any such Incremental Revolving Commitments shall mature no earlier than the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or Revolving Credit Maturity Date;
(B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the any Incremental Facility shall be agreed upon secured by Liens that rank pari passu, or, at the Borrower Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Initial Term A Loans or shall be deemed amended to reflect any Revolver Increase unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by Collateral; provided further that, if such Incremental Facility is secured by Liens that rank junior in priority with the Liens securing the Revolving Loans and the new Lender Initial Term A Loans, or is unsecured, (orx) such Incremental Facility shall be a separate tranche from the Initial Revolving Loans or the Initial Term A Loans, if as applicable; (y) such Incremental Facilities that are secured shall be subject to a Permitted Junior Intercreditor Agreement and (z) such Incremental Facilities shall not have mandatory prepayment provisions (other than related to customary asset sale, existing Lenderevent of loss or change of control offers) that could result in prepayments of such debt prior to the Latest Maturity Date;
(C) the maturity date of any Incremental Term Loans shall advance be no earlier than the maturity date of the Initial Term A Loans; and the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term A Loans; (D) (x) such Incremental Term Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term A Loans in any mandatory prepayment hereunder and (y) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in an amount sufficient such that after giving effect to its any borrowings and prepayments of Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.hereunder;
Appears in 2 contracts
Samples: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under subsection 8.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Effective Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and/or (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the loans borrowed thereunder Incremental Revolving Commitments, the “Incremental Term LoansCommitments”), provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.9 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be Incurred in reliance on the Ratio Incremental Facility, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be Incurred in reliance on clause (ii) or (iii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the Incurrence of such Incremental Commitment. Any Loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Credit Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this subsection 2.9 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this subsection 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such other bank or financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Line Lender or any Issuing Bank (in each case, such consent not to be unreasonably withheld, delayed or conditioned) shall be required.
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase O-1 (the “Revolver Increase” and together with any Increase Supplement”) or by each Additional Incremental Term Facilities, collectively, Lender substantially in the form attached hereto as Exhibit O-2 (the “Incremental FacilitiesLender Joinder Agreement”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such thatas the case may be, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to Section 8.05(a) such Supplemental Term Loan Commitment shall be a Term Loan or (b) hereof immediately prior commitments made pursuant to such Revolver IncreaseSupplemental Revolving Commitment shall be Revolving Commitments, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall not exceed 3.50 become commitments under this Agreement pursuant to 1.00; provided that if an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the proceeds other Loan Documents, executed by the Borrower and each applicable Incremental Lender. Notwithstanding anything to the contrary herein or in any other Loan Document, an Incremental Commitment Amendment may, without the consent of any Incremental Facility are used substantially concurrently other Lender, effect such amendments to finance a Permitted Acquisition any Loan Documents as may be necessary or similar investment permitted hereunder whose consummation is not conditioned on appropriate, in the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election opinion of the BorrowerBorrower and the Administrative Agent, (x) to effectuate the foregoing calculation provisions of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and this subsection 2.9 and/or (iiiy) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal so long as such amendments are not materially adverse to the actual amount so repaidother Lenders, repurchased and/or canceled) to maintain the fungibility of any such Incremental Term Loans with any Tranche of then outstanding Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on (i) (A) the date Incremental Commitments will not be guaranteed by any Subsidiary of the consummation Borrower other than the Subsidiary Guarantors, and will be, at the Borrower’s option, secured on an equal and ratable basis or a junior basis by the same Collateral securing the Senior Credit Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to an Intercreditor Agreement) or be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank on an equal and ratable basis in right of payment with or (at the Borrower’s option) junior in right of payment to the Senior Credit Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Senior Credit Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (jacquisition) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materialityRecovery Events or from Excess Cash Flow, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as Net Available Cash of such earlier date; provided that if Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the proceeds of the Incremental Facility are used substantially concurrently Initial Term Loans pursuant to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause subsection 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) shall only no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be satisfied on no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the LCT Test Initial Revolving Maturity Date; provided, however, that on (iv) the maturity date of and the consummation weighted average life to maturity of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans Loan Commitments shall have a maturity date be no earlier than or shorter than, as the Revolving Credit Termination case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and (iisubject to clause (iv) all Revolving Increases shall terminate on above) amortization schedule applicable to the Revolving Credit Termination Date;
(f) any loans made pursuant to the Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility Commitments shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any term loans made prior to the date that is 12 months after the Effective Date that are secured on an equal and ratable basis by the same Collateral securing the Senior Credit Facility Obligations that are Incurred by the Borrower under any Incremental Term Loan Commitment or under 7.1(b)(i)(B) other than under an Incremental Term Loan Commitment are, in either case, higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loans or such other term loans, as applicable, minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans or such other term loans, as applicable, (except for covenants A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan or other provisions term loan, as applicable, in the initial syndication thereof shall be included (xwith OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring, commitment, amendment or other fees payable in connection with the Incremental Term Loans or such other term loans, as applicable, that are not shared with all Incremental Lenders providing such Incremental Term Loans or all term loan lenders providing such other term loans, as applicable, shall be excluded; (C) any amendments to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Effective Date but prior to the time of such Incremental Term Loans or other term loans, as applicable, shall also be included in such calculations and (D) if the Incremental Term Loans or such other term loans, as applicable, include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders, Required Revolving Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock,” and “Refinancing Indebtedness”, in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vii) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans, and, in the case of Incremental Revolving Credit Facility Commitments, the terms and documentation governing the Initial Revolving Commitments (except to the extent permitted by clause (iii), (iv), (v) or (yvi) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing the Incremental FacilityAdministrative Agent. Upon The Administrative Agent shall promptly notify each Lender as to the effectiveness thereofof each Incremental Commitment Amendment. Each of the parties hereto hereby agrees that, Schedule 2.2 upon the effectiveness of any Incremental Commitment Amendment, this Agreement and any other Loan Document shall be deemed amended to reflect any Revolver Increase and the new Lender extent (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein but only to the contrary, no Lender shall have any obligation extent) necessary to participate in any reflect the existence and terms of the Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityCommitments evidenced thereby.
Appears in 2 contracts
Samples: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Incremental Facilities. The Borrower may (a) add The Lead Borrower may, from time to time after the Third Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more incremental tranches of term loan facilities loans hereunder (an “Incremental Term Facility” and collectively, the loans borrowed thereunder “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (collectively, the “Revolver IncreaseIncremental Revolving Commitments” and and, together with any Incremental Term Facilities, collectivelyLoans, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
provided that (ai) both at the aggregate amount time of all any such request and at the time that any such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilityentered into, no Default or Event of Default shall have occurred and be continuing; provided that if continuing or would result therefrom, (ii) the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding aggregate amount of such Incremental FacilityFacilities, no Event taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Default under Commitment Increases made pursuant to Section 9.01(a)2.19, does not exceed $500,000,000, (jiii) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective final stated maturity date of such tranche of Incremental Facility (where Facilities shall not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iv) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Credit Termination Date Loans, (v) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Parent that is not a Guarantor under this Agreement and (iivi) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any terms, conditions and documentation governing such Incremental Term Facility may permit voluntary and customary mandatory prepayments Facilities (including, for the avoidance of doubtwithout limitation, customary amortization paymentsall representations, excess cash flow prepaymentscovenants, defaults, guaranties and prepayments with debtremedies, asset sale and casualty insurance proceedsbut excluding economic terms);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) at providing such Incremental Facilities, than those terms and conditions applicable to the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in Lenders with respect to the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Loans (except for covenants or other provisions (x) applicable only to periods after the latest final maturity Maturity Date of the Revolving Credit Facility Loans). Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Parent, each Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. The Incremental Amendment may, at the discretion of each Additional Lender, (i) contain an indication of the status of such Additional Lenders as relevant for United Kingdom Tax purposes, as contemplated in Section 2.16(g)(ii), and/or (ii) contain the DTTP Scheme reference number and jurisdiction of tax residence of such Additional Lender, as contemplated in Section 2.16(g)(i)(B) and in the definition of “UK Borrower DTTP Filing”. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to (x) the satisfaction of the conditions as the parties thereto shall agree, provided that no such Incremental Amendment shall modify or waive any condition to the incurrence of Incremental Facilities except in accordance with Section 9.2 hereof, (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon receipt by the Borrower and Administrative Agent of documents substantially consistent with those delivered on the Lenders providing Third Restatement Effective Date pursuant to Section 4.1(e) (or the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (orequivalent, if applicableany, existing Lenderin the applicable jurisdiction) shall advance Revolving Loans in an amount sufficient such that as to the corporate power and authority of each Borrower to borrow hereunder after giving effect to its such Incremental Amendment and (z) in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Loans Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall have outstanding its Percentage of all Revolving Loans outstanding under require and shall be deemed to be a representation and warranty by each Borrower on the Revolving Credit Commitments. Notwithstanding anything herein date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 to the contrary, no Lender shall establishment of Incremental Facilities and in Section 4.2 have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitybeen satisfied as of such date.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments The Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days prior from time to the desired effective date of such increase (the “Revolver Increase” and together with any time, request Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained L/C Commitments in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to effect thereto, (i) the Aggregate Incremental Amount does not exceed the L/C Cap. Such notice shall set forth (i) the amount of the Incremental L/C Commitments being requested (which shall be in minimum increments of $100,000 and a minimum amount of $1,000,000) and (ii) the date on which such Incremental Facility L/C Commitments are requested to become effective (assuming which shall not be less than 5 Business Days nor more than 60 days after the aggregate Revolving Increase is fully funded), the Total Leverage Ratio date of such notice (calculated on a Pro Forma Basis based on the financial statements delivered to or such shorter periods as the Administrative Agent pursuant shall agree)). The Borrower may seek Incremental L/C Commitments from existing Lenders (each of which shall be entitled to Section 8.05(aagree or decline to participate in its sole discretion) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));Additional Lender.
(b) It shall be a condition precedent to the effectiveness of any Incremental L/C Commitment and the issuance of the Letters of Credit that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental L/C Commitment and (ii) the terms of such Incremental L/C Commitments and the Letters of Credit issued thereunder shall comply with Section 2.25(c).
(c) The terms of the Incremental Facilities L/C Commitments and related guarantees may the Letters of Credit issued pursuant thereto shall be determined by the Borrower and the applicable Incremental Issuing Bank and set forth in an Additional Credit Extension Amendment (including any applicable conditions for the issuance of a Letter of Credit); provided that (i) the Incremental L/C Commitments will rank pari passu in right of payment and be secured on a pari passu basis with respect to security with the Revolving Loans, Tranche B Term Loans and in none of the case obligors or guarantors with respect thereto shall be a Person that is not a Credit Party; provided that the foregoing shall not prohibit the posting of any Incremental Term Facility only, may also rank junior in right cash collateral to secure the Letters of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect Credit issued pursuant to such Incremental FacilityL/C Commitments, no Event of Default shall have occurred (ii) any L/C Disbursement may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment and (iii) the L/C Commitments may be continuing; provided that if cancelled and/or terminated on a non-pro rata basis with respect to the proceeds of the Term Loans.
(d) In connection with any Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionL/C Commitments, then at the election of the Borrower, the foregoing condition Administrative Agent and each applicable Incremental Issuing Bank shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental L/C Commitment of each Incremental Issuing Bank. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Any Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date reasonable opinion of the consummation of such Limited Condition Acquisition Administrative Agent and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, to effect the foregoing condition provisions of this Section 2.25, including any amendments as may be necessary or appropriate in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date reasonable opinion of the consummation of such Limited Condition Acquisition Administrative Agent and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith connection with the establishment and implementation of the Administrative Agent acting reasonably) market terms L/C Commitments and conditions any other technical amendments as may be necessary or appropriate (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower Administrative Agent and the Administrative Agent Borrower) in connection with the foregoing, in each case on terms consistent with this Section 2.25.
(except for covenants e) This Section 2.25 shall supersede any provisions in Section 2.17 or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.08 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities So long as no Event of Default under Section 9.1 (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”a) or (bf) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I exists or would arise therefrom (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of Term Loans made pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to Incremental Commitment will be used before capacity under clause (i) and (II) loans may to consummate a Limited Condition Transaction, the requirement that there be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause under Section 9.1(a) or (cf) shall only be required to be satisfied on the LCT Test date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term 1004254246v19 Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified (including for purposes of Section 8.1(b)(ii) and clause (26) of the definition of “Permitted Liens”), as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). 1004254246v19
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that on (i) (A) the date Incremental Commitments will not be guaranteed by any Subsidiary of the consummation Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche EF Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of such Limited Condition Acquisition payment with or (at the Borrower’s option) junior to the Tranche EF Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the funding Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental FacilityLoans) and (II) so long as any Tranche EF Term Loans are outstanding, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where any mandatory prepayment provisions that do not already qualified by materiality, otherwise in all respects), except also apply to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects Term Loans (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall have be subject to junior prepayment provisions) on a maturity date no earlier pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche EF Term Loans than such Incremental Term Loans as contemplated by the Revolving Credit Termination Date and proviso appearing in Section 4.4(c)) (iiother than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fbelow) any Incremental Term Facility Loans may permit voluntary and customary mandatory prepayments provide for more favorable amortization payments than the Tranche EF Term Loans,; (including, for ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower maturity 1004254246v19 date and the applicable lenders providing weighted average life to maturity of such Incremental Term Facility; provided that such terms Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche EF Term Loan Maturity Date or the weighted average life to maturity of the Tranche EF Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) shorter weighted average life to maturity than the terms under those in Tranche EF Term Loan Maturity Date or the Revolving Credit Facility when taken as a whole and, in each caseweighted average life to maturity of the Tranche EF Term Loans, as reasonably applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Administrative Agent applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche EF Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche EF Term Loans shall be increased (except the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for covenants the Tranche EF Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche EF Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche EF Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Tranche EF Term Loans that became effective subsequent to the FifthSeventh Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche EF Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche EF Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche EF Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche EF Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche EF Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche EF Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor 1004254246v19 applicable to the Tranche EF Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche EF Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche EF Term Loans shall be required, and (F) if the applicable Tranche EF Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Tranche EF Term Loan Maturity Date and the weighted average life to maturity of the Revolving Credit Facility Tranche EF Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche EF Term Loans (except to the extent permitted by clause (iii), (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing Administrative Agent.
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be deemed amended incurred pursuant to reflect any Revolver Increase Section 2.1(b) or (c) (as applicable) and accordingly the new Lender requirements of this Section 2.6, including clause (oriv) of the first proviso of Section 2.6(d), if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent not apply thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Incremental Commitment Amendment (Warner Music Group Corp.), Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. The Borrower may (a) The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and the any loans borrowed thereunder made pursuant to an Incremental Facility, “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of no Incremental Equivalent Debt issued, incurred or otherwise obtained Commitment in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds respect of any Incremental Facility are used substantially concurrently may be in an amount that is less than $5,000,000 (or such lesser amount to finance which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Permitted Acquisition lender providing all or similar investment part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted hereunder whose consummation is not conditioned on the availability ofherein (including with respect to margin, or on obtainingpricing, third party financing (a “Limited Condition Acquisition”maturity and fees), then the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the election option of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only (x) not be required materially more restrictive to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect its Restricted Subsidiaries (as determined by the Borrower in good faith and faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent acting reasonably(i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or effectiveness issuance (as determined by the Borrower in good faith);
(v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans on the date of incurrence of such Incremental Facility (without giving effect to any prepayments of the Initial Term Loans);
(viii) [reserved];
(ix) [reserved];
(A) any Incremental Facility (x) shall rank pari passu or junior in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) are no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not materially more restrictive a Loan Party or (excluding feesy) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, original issue discount, interest rates, rate floors, spread adjustments, call premiums, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and optional and (B) in any mandatory prepayment and redemption termsof Term Loans as set forth in Section 2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the terms under those in proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the Revolving Credit Facility when taken as a whole andthen-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) after giving effect to the funding of such Incremental Facility and the application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 7.01(a), (f) or (g) with respect to the Borrower only) shall have occurred and be continuing on such date and (C) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or establishment of such Incremental Facility; provided that (I) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility; provided, further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans of the relevant Class and which end on the last day of such Interest Period.
(b) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably determined required by the Borrower Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (except for covenants the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other provisions item not consistent with this Section 2.22) and (xv) applicable only the Administrative Agent shall be entitled to periods after the latest final maturity receive a certificate of the Revolving Credit Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and
(yB) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Document as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Facility shall be agreed upon by Administrative Agent and the Borrower and in connection with the Lenders providing the Incremental Facility. Upon the effectiveness thereofestablishment of such new Classes or sub-Classes, Schedule 2.2 in each case on terms consistent with this Section 2.22.
(f) This Section 2.22 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 2.18 or 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. The Borrower may (a) add The Borrower and any one or more incremental term loan facilities Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or Revolving Commitments (b) increase the aggregate amount of the “Increased Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and Commitments”; together with any Incremental Term Facilities, collectivelyFacility, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i)increase, (ii) an amount such thatthe applicable Increased Facility Closing Date, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) case of Incremental Term Loans, (x) the applicable Incremental Equivalent Debt and Revolving Loans Term Maturity Date, (in y) the case of Revolving amortization schedule for such Incremental Term Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness and (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (Iz) the Borrower shall be deemed to have used capacity under clause Applicable Margin for such Incremental Term Loans; provided, that (i) (to the extent compliant therewith) before capacity under clauses (ii) no Event of Default exists or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and would exist after giving effect to such Incremental Facility, no Event (ii) on a pro forma basis after giving effect to the incurrence of Default shall have occurred any such Incremental Facility (assuming, if such Incremental Facility consists of Increased Revolving Commitments, such Increased Revolving Commitments are fully drawn as of such date) and be continuing; provided that if after giving effect to other permitted pro forma adjustment events and any repayments of Indebtedness after the proceeds beginning of the Incremental Facility are used substantially concurrently relevant period but prior to finance a Limited Condition Acquisition, then at or simultaneous with the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding incurrence of such Incremental Facility, no Event (x) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 recomputed as of Default under the last day of the fiscal quarter of the Borrower then most recently ended for which financial statements described in Section 9.01(a), (j6.1(a) or (kb) hereof have been delivered, (y) the Consolidated First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall have occurred be no greater than 3.00:1.00 and (z) the Consolidated Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall be continuing;
no greater than 4.00:1.00, (diii) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they Article IV shall be true and correct in all material respects (where except that such materiality qualifier shall not be applicable to the extent any such representations and warranties are already qualified or modified by materiality, otherwise in all respects) it being understood and agreed that any representation or warranty which by its terms is made as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) specified date shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects only as of such specified date) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, (without duplication iv) the maturity date and Weighted Average Life to Maturity of materiality qualifiers);
(e) (i) all any such Incremental Term Loans Facility shall have a maturity date be no earlier than (or the Revolving Credit Termination Date same as) the maturity date and Weighted Average Life to Maturity, respectively, of the Term Loans, (iiv) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) interest rates and amortization schedule applicable to any Incremental Term Facility may permit voluntary shall be determined by the Borrower and customary mandatory prepayments the lenders thereunder and (including, for vi) any Increased Revolving Commitments shall be on terms and pursuant to documentation applicable to the avoidance of doubt, customary amortization payments, excess cash flow prepayments, Revolving Facility (including the maturity date in respect thereof) and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Loan Facility shall be on terms and pursuant to documentation, to the extent such terms and documentation to be agreed between are not consistent with, in the Borrower and the applicable lenders providing such case of an Incremental Term Facility; provided that such terms either , the Term Facility (Aexcept to the extent permitted by clause (iv) reflect and (as determined by the Borrower in good faith and the Administrative Agent acting reasonablyv) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding feesabove), original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and satisfactory to the Administrative Agent (except including as to the identity of the New Lenders); provided, that if the total yield (calculated for covenants both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below)) shared with all providers of such Incremental Term Loans, but excluding the effect of any arrangement, structuring, syndication or other provisions fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the Eurodollar Rate or ABR in respect of any Incremental Term Loans exceeds the total yield for the existing Loans (xit being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no higher 0.50% greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (i) applicable only to periods without the consent of the Required Lenders, the aggregate amount of Increased Revolving Commitments obtained after the latest final maturity Closing Date pursuant to this paragraph, together with the aggregate amount of Incremental Term Loans obtained pursuant to this paragraph and the amount of any Second Lien Incremental Loans, shall not exceed $25,000,000 and (ii) without the consent of the Revolving Credit Facility or (y) as are incorporated into Administrative Agent, each increase effected pursuant to this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility paragraph shall be agreed upon by the Borrower and the Lenders providing the Incremental Facilityin a minimum amount of at least $5,000,000. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no No Lender shall have any obligation to participate in any Incremental Facility increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and no the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender’s Revolving Credit Commitment ” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H-3, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased without its consent thereto, and Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may at its option, unconditionally be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and without cause, decline furnished to participate in any Incremental Facilitythe other parties hereto.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Incremental Facilities. The Borrower may (a) add The Lead Borrower may, from time to time after the Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more incremental tranches of term loan facilities loans of any Class hereunder (an “Incremental Term Facility” and collectively, the loans borrowed thereunder “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (collectively, the “Revolver IncreaseIncremental Revolving Commitments” and and, together with any Incremental Term Facilities, collectivelyLoans, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
provided that (ai) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $375,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu or junior in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not exceed be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issuedterms, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to conditions and documentation governing such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubtwithout limitation, customary amortization paymentsall representations, excess cash flow prepaymentscovenants, defaults, guaranties and prepayments with debtremedies, asset sale and casualty insurance proceedsbut excluding economic terms);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) at providing such Incremental Facilities, than those terms and conditions applicable to the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in Lenders with respect to the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Loans (except (i) for covenants or other provisions (x) applicable only to periods after the latest final maturity Maturity Date of the Revolving Credit Facility Loans or (yii) as to the extent such more favorable terms are incorporated into this Agreement the Loan Documents for the benefit of all existing Lenders (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without further amendment voting requirementsthe consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount, Class and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The effective date Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Facility Amendments. The effectiveness of any Incremental Amendment shall be agreed upon by subject to the Borrower satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the Lenders providing the part of any Lender to provide Incremental Facility. Upon the effectiveness thereofFacilities, Schedule 2.2 at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed amended to reflect any Revolver Increase be a representation and warranty by each Borrower on the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans date on which such Incremental Facilities are entered into that the conditions set forth in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein this Section 2.20 and in Section 4.2 to the contrary, no Lender shall establishment of Incremental Facilities have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitybeen satisfied as of such date.
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. The Borrower may (a) At any time and from time to time, commencing on the Amendment Effective Date and ending on the Latest Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to:
(i) add one or more incremental additional tranches of term loan facilities loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”); and
(ii) solely during the Revolving Credit Period, on one or (b) more occasions, increase the aggregate amount of the Commitments (each such increase, a “Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Commitment Increase” and and, together with any the Incremental Term Facilities, collectivelyLoans, the “Incremental FacilitiesExtensions of Credit”) identifying ), in an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the aggregate principal amount of its up to $500,000,000. Each Incremental Term Loans and each Revolving Credit Commitment (or additional Increase shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount of its Revolving Credit Commitment)that is not less than $50,000,000; provided, however, that:
(a) provided that such amount may be less than $50,000,000 if such amount represents all the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less remaining availability under the aggregate principal amount of Incremental Equivalent Debt issuedExtensions of Credit set forth above.
(b) The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, incurred increase in the amount, or otherwise obtained in reliance on this clause (i), (iiextension of a Letter of Credit thereunder) an amount such that, after giving Pro Forma Effect pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 (assuming Notice of Borrowings) and the aggregate Revolving Increase is fully fundedsatisfaction of the following conditions and such other conditions as the parties thereto shall agree:
(i) no Default or Event of Default (or, in the event the proceeds of any Incremental Extension of Credit are used to finance any acquisition or Investment permitted hereunder, no Event of Default under Sections 7(a), 7(h) or 7(i)) has occurred and is continuing or shall result therefrom,
(ii) the Total representations and warranties of the Borrower and each other Loan Party, as applicable, set forth in the Loan Documents would be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of, and immediately after giving effect to, the incurrence of such Incremental Extension of Credit (except in the case of a representation and warranty that expressly relates to a prior date, in which case such representation and warranty is true and correct in all material respects (or in all respects, as applicable) as of such earlier date) (or, in the event the proceeds of any Incremental Extension of Credit are used to finance any acquisition or Investment permitted hereunder, such condition precedent set forth in this clause (b)(ii) may be limited to (x) customary specified representations and warranties with respect to Holdings, the Borrower and its Restricted Subsidiaries and (y) customary specified acquisition agreement representations with respect to the Person to be acquired or Person in which such Investment is to be made),
(iii) the financial covenants contained in Sections 6.12 (Interest Expense Coverage Ratio) and 6.13 (Leverage Ratio (calculated Ratio) would be satisfied on a Pro Forma Basis based on and as of the financial statements delivered to date of, and immediately after giving effect to, the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to incurrence of such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if Incremental Extension of Credit and the application of the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing therefrom (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingassuming, for the avoidance purposes of doubtthis Section 2.24(b)(iii) only, Revolving Loansthat the full amount of Commitments under such Incremental Extension of Credit shall have been funded as Loans as of such date),
(iv) (it being understood that (I) the Borrower Holdings shall be deemed to have used capacity under clause (i) (delivered a certificate of a Financial Officer to the extent compliant therewith) before capacity under clauses (ii) or (iii), effect that and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under the effect set forth in clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above (which calculations shall, if made as of the last day of any fiscal quarter of Holdings for which Holdings has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period);, and
(bv) all fees and expenses owing in respect of such Incremental Extension of Credit to the Administrative Agent and the Lenders have been paid.
(c) The parties intend that each Incremental Facilities and Extension of Credit (including any related guarantees may rank pari passu in right of payment and Loan Document Obligations), if secured by the Collateral, shall be secured by the Collateral on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
other Secured Obligations (c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingnotwithstanding, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, the classification of any Lien or Security Document securing all or any portion of such Incremental Extension of Credit as “second ranking” under applicable law in any Specified Collateral Jurisdiction) and prepayments with debt, asset sale and casualty insurance proceeds);no Incremental Extension of Credit shall be guaranteed by any Person other than the Loan Parties or be secured by any assets other than the Collateral.
(gd) except as otherwise provided in Each notice from the Borrower pursuant to this Section 2.162.24 shall set forth the requested amount and proposed terms of the relevant Incremental Extension of Credit. Any additional bank, financial institution, existing Lender or other Person that elects to extend commitments in respect of any Incremental Term Facility Extension of Credit shall be on terms and pursuant reasonably satisfactory to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants and, in the case of any Revolving Commitment Increase, each Issuer) (any such bank, financial institution, existing Lender or other provisions Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (xan “Incremental Facility Amendment”) applicable only to periods after this Agreement and, as appropriate, the latest final maturity other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Extension of Credit unless it so agrees. Commitments in respect of any Incremental Extension of Credit shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement upon the effectiveness of the Revolving Credit applicable Incremental Facility Amendment. One or (y) as are incorporated into more additional financial maintenance covenants may be added to this Agreement for the benefit of any Incremental Extension of Credit so long as such financial maintenance covenants are for the benefit of all existing Lenders in respect of all Loans and Commitments outstanding at the time that the applicable Incremental Facility Amendment becomes effective.
(which may be accomplished without further amendment voting requirements)). The effective e) On the date of effectiveness of any Revolving Commitment Increase, (i) the Incremental Facility shall be agreed upon by aggregate principal amount of the Borrower and Loans outstanding (the Lenders providing the Incremental Facility. Upon “Existing Revolving Borrowings”) immediately prior to the effectiveness thereof, Schedule 2.2 of such Revolving Commitment Increase shall be deemed amended to reflect any Revolver be repaid, (ii) each Additional Lender providing a portion of such Revolving Commitment Increase and (each, a “Revolving Commitment Increase Lender”) that shall have had a Commitment prior to the new Lender (oreffectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if applicableany, existing by which (A) (1) such Revolving Commitment Increase Lender) shall advance Revolving Loans in an amount sufficient such that ’s Ratable Portion (calculated after giving effect to its the effectiveness of such Revolving Loans Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Ratable Portion (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that did not have a Commitment prior to the effectiveness of such Revolving Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Ratable Portion (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the amount, if any, by which (A) (1) such Lender’s Ratable Portion (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings, exceeds (B) (1) such Lender’s Ratable Portion (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing request delivered to the Administrative Agent in accordance with Section 2.03 (Notice of Borrowings) (and the Borrower shall deliver such Borrowing request), (vi) each Revolving Lender shall be deemed to hold its Ratable Portion of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.14 (Indemnity) if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Revolving Commitment Increase pursuant to this Section 2.24, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Commitment Increase Lender, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding its Percentage Letters of all Credit such that, after giving effect to such Revolving Loans Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, in each case held by each Lender (including each such Revolving Commitment Increase Lender) will equal such Lender’s Ratable Portion. Each Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation as are applicable to the Loans.
(f) An Incremental Facility Amendment may, without the consent of any other Lenders, (i) effect such amendments to this Agreement or to any other Loan Document (or permit the entry into any other document to effect such amendments to a Loan Document or to effect the provisions of this Section 2.24) as may be necessary or appropriate, in the reasonable opinion of the Borrower and Administrative Agent, to effect the provisions of this Section 2.24, including, to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of Section 9.08(b), and (ii) provide for the issuance of Letters of Credit pursuant to any Revolving Commitment Increase established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Credit Commitments. Commitments (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by Borrower, the lenders of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment); provided that no Issuer shall be required to act as “issuing bank” under any such Incremental Facility Amendment without its written consent.
(g) Notwithstanding anything herein to the contrary, no Lender this Section 2.24 shall have supersede any obligation provisions in Section 2.15 (Pro Rata Treatment) or Section 9.08 (Waivers; Amendment) to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythe contrary.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to the desired effective date of such increase Incremental Tranche B Term Loan commitments (the “Revolver IncreaseIncremental Tranche B Term Loan Commitments”) and/or (y) Incremental Revolving Credit Commitments (the “Incremental Revolving Credit Commitment” and and, together with any the Incremental Tranche B Term Facilities, collectivelyLoan Commitments, the “Incremental FacilitiesLoan Commitments”) identifying by an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount (A) not in excess of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility pro forma effect thereto (including use of proceeds and assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments thereforare fully drawn), (1) the Consolidated Secured Debt to Consolidated EBITDA Ratio is no greater than 2.50 to 1.00 and (2) the Consolidated Total Debt to Consolidated EBITDA Ratio is no greater than 6.75 to 1.00, in each case, not made with case as of the proceeds Table of any long-term indebtedness (excluding, for Contents last day of the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and most recently ended fiscal quarter after giving effect to such Incremental FacilityLoan Commitments (including use of proceeds and assuming the Incremental Revolving Credit Commitments are fully drawn) and (B) not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent), and integral multiples of $5,000,000 in excess of that amount; provided that (i) Incremental Tranche B Term Loan Commitments may be incurred without regard to the conditions set forth in the preceding clause (A) and without regard to the minimums set forth in the preceding clause (B) to the extent that the Net Cash Proceeds from such Incremental Loan Commitments on the date of incurrence (or substantially concurrently therewith) are used to refinance Term Loans or Incremental Tranche B Term Loans. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as is acceptable to the Administrative Agent); provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment. Such Incremental Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such Incremental Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of Incremental Tranche B Term Loans or Incremental Revolving Loans, each of the conditions set forth in Section 7 shall be continuingsatisfied; provided that if (3) the Borrower and its Subsidiaries shall be in pro forma (giving effect to the application of proceeds of any incremental loans) compliance with the covenants set forth in Section 11 as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Loan Commitments and any Investment to be consummated in connection therewith; (4) the Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (5) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable; and (6) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Tranche B Term Loans made on an Increased Amount Date may be designated, a separate series (a “Series”) or Class of Incremental Tranche B Term Loans for all purposes of this Agreement or may be an increase to an existing Series or Class. On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign (on a pro rata basis between such Lender’s Tranche R-1 Revolving Credit Commitment and Tranche R-2 Revolving Credit Commitment) to each Lender with an Incremental Revolving Credit Commitment (each, an “Incremental Revolving Loan Lender”) and each of the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionRevolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, then at the election principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans (on a pro rata basis between such Lender’s outstanding Tranche R-1 Revolving Credit Loans and outstanding Tranche R-2 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 Revolving Credit Loans will be held by existing Lenders with Revolving Credit Loans and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the BorrowerRevolving Credit Commitments, the foregoing condition in this clause (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Loan Lender shall only be required become a Lender with respect to be satisfied the Incremental Revolving Loan Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Tranche B Term Loan Commitments of any Series are effective, subject to the LCT Test Datesatisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Tranche B Term Loan Commitment (each, an “Incremental Tranche B Term Loan Lender”) of any Series shall make a Loan to the Borrower (an “Incremental Tranche B Term Loan”) in an amount equal to its Incremental Tranche B Term Loan Commitment of such Series, and (ii) each Incremental Tranche B Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Tranche B Term Loan Commitment of such Series and the Incremental Tranche B Term Loans of such Series made pursuant thereto. The terms and provisions of the Incremental Tranche B Term Loans and Incremental Tranche B Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to Table of Contents the Tranche B-3 Term Loans; provided, however, that on (i) the date applicable Incremental Tranche B Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a)Tranche B-3 Term Loans, (jii) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except weighted average life to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds maturity of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Tranche B Term Loans shall have a maturity date be no earlier shorter than the Revolving Credit Termination Date remaining weighted average life to maturity of the then existing Tranche B-3 Term Loans and (iiiii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any rate of interest applicable to the Incremental Tranche B Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance Loans of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility each Series shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that to the extent that the Applicable ABR Margin or Applicable LIBOR Margin for covenants any Incremental Tranche B Term Loan is greater than the Applicable ABR Margin or other provisions Applicable LIBOR Margin for the Tranche B-3 Term Loans by more than 50 basis points, then such Applicable ABR Margin or Applicable LIBOR Margin for the Tranche B-3 Term Loans shall be increased to the extent necessary so that the Applicable ABR Margin or Applicable LIBOR Margin for the Incremental Tranche B Term Loans is 50 basis points higher than the Applicable ABR Margin or Applicable LIBOR Margin for the Tranche B-3 Term Loans; provided, further, that in determining the Applicable ABR Margin or Applicable LIBOR Margin applicable to the Tranche B-3 Term Loans and the Incremental Tranche B Term Loans, (x) applicable only original issue discount (“OID”) or upfront fees (which shall be deemed to periods after constitute like amounts of OID) payable by the latest final maturity Borrower to the Lenders of the Revolving Credit Facility Tranche B-3 Term Loans or the Incremental Tranche B Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and (y) as are incorporated into this Agreement for any underwriting or arrangement fees payable to the benefit of all existing Lenders (which may arrangers or their Affiliates in connection with the Tranche B-3 Term Loans and Incremental Tranche B Term Loans shall be accomplished without further amendment voting requirements))excluded. The effective date terms and provisions of the Incremental Facility Revolving Loans and Incremental Revolving Credit Commitments shall be agreed upon by identical to the Borrower applicable Revolving Credit Loans and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the applicable Revolving Credit Commitments. Notwithstanding anything herein Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the contraryother Credit Documents as may be necessary or appropriate, no Lender shall have any obligation in the opinion of the Administrative Agent, to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityeffect the provision of this Section 2.14.
Appears in 1 contract
Samples: Amendment No. 5 and Joinder Agreement (Intelsat S.A.)
Incremental Facilities. The Borrower may (a) add The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more incremental additional tranches of term loan facilities loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (bii) increase one or more increases in the aggregate amount of the Revolving Credit Commitments by delivering Commitments; (each such increase, an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Incremental Revolving Commitment Increase” and ”); together with any the Incremental Term Facilities, collectivelyLoans, the “Incremental Facilities”), provided that (A) identifying both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan or Incremental Revolving Commitment Increase is made or effected (and after giving effect thereto), the conditions in Section 7.1 shall be satisfied and (B) the Full Availability Date shall have occurred and (C) solely with respect to an additional Lender (or additional Incremental Revolving Credit Commitment Increase, the Borrower shall be in compliance with the covenant set forth in Section 10.9 for an existing Lender) and the amount most recently ended fiscal quarter determined on a Pro Forma Basis as of its the date of the making of such Incremental Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:Increase.
(ab) Each tranche of Incremental Term Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $100,000,000 (provided that such amount may be less than $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence).
(c) The aggregate principal amount of all such Incremental Facilities shall not exceed the sum of (i1) $300,000,000 less 750,000,000 plus (2) if the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect RCT Carve Out Support Rejection Notice shall have been issued and delivered prior to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded)Delayed-Draw Termination Date, the Total Leverage Ratio (calculated Delayed-Draw Term Facility Reduction Amount determined on a Pro Forma Basis based on after the financial statements delivered to the Administrative Agent pursuant to Section 8.05(aincurrence of such Incremental Facility.
(d) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of The Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis of security with the Revolving Credit Loans, Delayed-Draw Term Loans and in the case of any Incremental all other Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
Loans (c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (cii) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no mature earlier than the Revolving Credit Termination Date and Latest Maturity Date, (iiiii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discounthave interest rates, interest ratesmargins, rate floors, spread adjustmentsfees, call premiumsfunding discounts, premiums and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the other Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent; provided, further that the Yield on any tranche of Incremental Term Loans does not exceed the Yield on the initial Term Loans or the Delayed Draw Term Loans by more than 50 basis points per annum, unless the interest rate on the initial Term Loans and the Delayed Draw Term Loans, as applicable, is increased on or prior to the date of the incurrence of such Incremental Term Loans in order to comply with this proviso.
(e) [Reserved].
(f) [Reserved].
(g) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Incremental Revolving Commitment Increases may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Facility and (ii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Credit Facility); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(h) Commitments in respect of Incremental Term Loans and Incremental Revolving Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit K to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent (except notwithstanding any provision to the contrary in Section 13.1 of this Agreement). The Incremental Amendment may, subject to Section 2.14(c) and (f)) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (notwithstanding any provision to the contrary in Section 13.1 of this Agreement). The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for covenants or other provisions any purpose not prohibited by this Agreement.
(xi) applicable only (i) unless it so agrees, the Borrower shall not be obligated to periods after offer any existing Lender the latest final maturity opportunity to provide any Incremental Facility. If, on the date of any increase in the Revolving Credit Facility Commitments pursuant to an Incremental Revolving Commitment Increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (y) as are incorporated into reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement for shall not apply to the benefit transactions effected pursuant to the immediately preceding sentence.
(ii) At the option of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing such Incremental Revolving Commitment Increases, any Incremental Revolving Commitment Increases may be in the Incremental Facility. Upon form of one or more separate classes of revolving credit commitments (the effectiveness thereof, Schedule 2.2 “New Revolving Credit Commitments”) which shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage constitute a separate Class of all Revolving Loans outstanding under Commitments from the Revolving Credit Commitments and/or any other New Revolving Credit Commitments (each such separate Class of New Revolving Credit Commitments. Notwithstanding anything herein , a “New Revolving Credit Series” and each Loan thereunder, a “New Revolving Credit Loan”) and the related Loans shall constitute a separate Class of Loans from the Revolving Credit Loans, and/or any other New Revolving Credit Loans (it being understood that New Revolving Credit Commitments of a single New Revolving Credit Series may be established on more than one date); provided that:
(A) Each tranche of New Revolving Credit Commitments shall be in an aggregate principal amount of not less than $100,000,000 (provided that such amount may be less than $100,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(b) above).
(B) the terms of such New Revolving Credit Commitments, except for (w) the tenor of the New Revolving Credit Commitments (which shall have a scheduled expiration date no earlier than the Maturity Date), (x) the size of any letter of credit subfacilities under such New Revolving Credit Commitments, (y) the applicable interest rates, interest margins, rate floors, premiums, funding discounts and fees payable with respect to such New Revolving Credit Commitments and (z) the borrowing, repayment and termination of Commitment procedures (in each case which shall be as specified in the applicable Incremental Amendment), shall be similar to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s terms of the Revolving Credit Commitment Commitments (unless otherwise consented to by the Administrative Agent); provided that the Yield on the New Revolving Credit Commitments does not exceed the Yield on the initial Revolving Credit Commitments by more than 50 basis points, unless the interest rate on the initial Revolving Credit Commitments is increased on or prior to the date of the incurrence of such New Revolving Credit Commitments in order to comply with this proviso.
(C) in connection with the establishment of any New Revolving Credit Commitments that will include letter of credit subfacilities, any amendment to this Agreement pursuant to this Section 2.14(i)(ii) may include provisions relating to letters of credit issued thereunder, which issuances shall be increased without its consent theretoon terms similar (except for the overall size of such subfacilities and the identity of the letter of credit issuer, and borrowing, repayment and termination of commitment procedures, in each Lender may at its option, unconditionally case which shall be specified in the applicable Incremental Amendment) to the terms relating to Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and without cause, decline to participate in any Incremental Facilityapplicable letter of credit issuer thereunder.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. (a) The Borrower may (a) add by written notice to the Administrative Agent elect to request the establishment of one or more incremental term loan facilities increases in Commitments (an the “Incremental Term Facility” Commitments”), by an aggregate amount that is an integral multiple of $5,000,000 and not less than $10,000,000 individually (or such lesser amount as may be approved by the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Administrative Agent); provided that at no time shall the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable Commitments, after giving effect to the Administrative Agentrelevant Incremental Commitments (assuming for purposes of this Section 2.21(a) that such Incremental Commitments effected pursuant to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase this Section, exceed $500,000,000 (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyMaximum Corporate Secured Debt Amount”)are fully drawn), the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities Senior Debt Incurrence Ratio shall not exceed the sum greater of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred 0.80:1.00 or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to if such Incremental Facility (assuming Commitments are incurred in connection with any acquisition or other investment not prohibited by the aggregate Revolving Increase is fully funded)Loan Documents, the Total Leverage Senior Debt Incurrence Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to the incurrence of such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)Commitments, in each case, not made with calculated on a pro forma basis, including the application of the proceeds of any long-term indebtedness thereof. Each such notice shall specify the date (excludingeach, for the avoidance of doubt, Revolving Loansan “Incremental Effective Date”) (it being understood that (I) on which the Borrower proposes that the Incremental Commitments shall be deemed effective. The Borrower may approach any Lender or any other Person (other than a natural person) to have used capacity under clause provide all or a portion of the Incremental Commitments; provided that any Lender may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall become effective as of the applicable Incremental Effective Date; provided that (i) (x) the conditions set forth in Section 4.02 shall be satisfied (with all references in such Section to the extent compliant therewith) before capacity under clauses (ii) or (iiia Borrowing being deemed to be references to such Incremental Commitment), and capacity under clause (iiiy) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonablyshall have received a certificate to that effect dated such date and executed by an Authorized Officer, (ii) market terms the Incremental Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined delivered by the Borrower and the Administrative Agent, (iii) the Administrative Agent and the Swingline Lender shall have consented (except not to be unreasonably withheld or delayed) to any New Lender (as defined below) to the extent such consent, if any, would be required under Section 10.04 for covenants an assignment of Loans or other provisions Commitments to such Person and (xiv) applicable only the Borrower shall make any payments required pursuant to periods after Section 2.15 in connection with the latest final maturity Incremental Commitments, as applicable.
(b) On any Incremental Effective Date, subject to the satisfaction of the Revolving Credit Facility or foregoing terms and conditions, (yi) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date each of the Lenders with existing Commitments shall assign to each Lender with an Incremental Facility Commitment (each, a “New Lender”) and each of the New Lenders shall purchase from each of the Lenders with existing Commitments, at the principal amount thereof, such interests in the Loans outstanding on such Incremental Effective Date as shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofnecessary in order that, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving all such assignments and purchases, the Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein will be held by existing Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the contraryaddition of such Incremental Commitments to the Commitments, no Lender shall have any obligation to participate in any (ii) each Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased deemed for all purposes a Commitment and, each Loan made under an Incremental Commitment (a “New Loan”) shall be deemed, for all purposes, Loans and (iii) each New Lender shall become a Lender with respect to the Incremental Commitment and all matters relating thereto.
(c) Incremental Commitments and New Loans shall be identical to the Commitments and the Loans.
(d) Each Lender Joinder Agreement may, without its the consent theretoof any other Lenders, effect technical and each Lender corresponding amendments to this Agreement and the other Loan Documents as may at its optionbe necessary or appropriate, unconditionally and without causein the opinion of the Administrative Agent, decline to participate in any Incremental Facilityeffect the provision of this Section 2.21.
Appears in 1 contract
Samples: Credit Agreement (KKR Real Estate Finance Trust Inc.)
Incremental Facilities. The Borrower may (a) from time to time add one or more incremental tranches of term loan facilities loans (each an “Incremental Term Facility” and ”) and/or increase the loans borrowed thereunder Aggregate Revolving Commitments (each such increase, an “Incremental Term LoansRevolving Increase”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” ; and together with any each Incremental Term Facilities, Facility collectively, the “Incremental Facilities”) identifying to this Agreement at the option of the Borrower by an additional Lender agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (or additional Revolving Credit Commitment for an including any existing Lender) and the amount that agrees to provide a portion of its Revolving Credit Commitment such Incremental Facility (or additional amount of its Revolving Credit Commitmenteach an “Incremental Facility Amendment”); provided, however, provided that:
(a) the aggregate principal amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii))50,000,000;
(b) no Default shall exist on the effective date of such Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and would exist after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause ;
(c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth of each Loan Party contained in Section 6 and in the Article V or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be and remain true and correct in all material respects on and as of the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Facility, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if ;
(d) no existing Lender shall be under any obligation to provide any potion of an Incremental Facility and any such decision whether to provide any portion of an Incremental Facility shall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a portion of an Incremental Facility shall qualify as an Eligible Assignee;
(g) the proceeds Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility are used substantially concurrently to finance signed by a Limited Condition Acquisition, then at Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the election board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, the foregoing condition in this clause (d) shall only be required certifying that, before and after giving effect to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only (1) the Specified Representations representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall have to be true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and (without duplication of materiality qualifiers2) no Default exists;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(eiii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a portion of an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that any then proposed Incremental Revolving Increase is fully drawn) (iA) all Incremental Term Loans shall have a maturity date no earlier the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b) and (B) the Consolidated Net Leverage Ratio would not be greater than 0.25 times less than the Revolving Credit Termination Date and maximum Consolidated Net Leverage Ratio permitted under Section 7.11 as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceedsb);
(gh) except as otherwise provided in this Section 2.16the case of an Incremental Term Facility:
(i) the interest rate, any interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be on terms and pursuant to documentation to be as agreed between by the Borrower Loan Parties and the applicable lenders Lenders providing such Incremental Term Facility; provided that such terms either that:
(A) reflect the final maturity of such Incremental Term Facility shall not be earlier than the later of the Maturity Date and the latest maturity date of any outstanding term loan under this Agreement;
(as determined B) the Weighted Average Life To Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any outstanding term loan under this Agreement;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield of the Revolving Loans, the Term Loan or any other outstanding term loan under this Agreement by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Borrower with respect to the Revolving Loans, the Term Loan or such other outstanding term loan under this Agreement, as applicable, shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Revolving Loans, the Term Loan and such other outstanding term loan under this Agreement, as applicable, to be 50 basis points (0.50%) less than the All-In-Yield on such Incremental Term Facility;
(ii) such Incremental Term Facility shall share ratably in good faith any mandatory prepayments of the other term loans under this Agreement pursuant to Section 2.05(b) (or otherwise provide for more favorable prepayment treatment for the then outstanding term loans under this Agreement) and shall have ratable voting rights as the other term loans under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement).
(i) in the case of any Incremental Revolving Increase:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Revolving Increase) applicable to such Revolving Facility;
(ii) if any Revolving Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the to prepay Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity Loans of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofLenders, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(iii) the existing Lenders with a Revolving Commitment shall on the effective date of such Incremental Revolving Increase be deemed to have made such assignments (which assignments shall not be subject to the requirements set forth in Section 11.06(b)) of the outstanding participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender with a Revolving Commitment (including the Lenders providing such Incremental Revolving Increase) will hold participation interests in Letters of Credit and Swing Line Loans equal to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitypro rata share thereof.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrower may, from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Closing Date, upon notice by the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) Borrower to the Administrative Agent at least five and the Person appointed by the Borrower to arrange an incremental Facility (5such Person (who may be (i) Business Days prior to the desired effective date of such increase Administrative Agent, if it so agrees or (ii) any other Person appointed by the “Revolver Increase” and together Borrower after consultation with any Incremental Term Facilities, collectivelythe Administrative Agent), the “Incremental FacilitiesArranger”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) specifying the proposed amount thereof and the amount of its Revolving Credit proposed currency denomination thereof, request (i) an increase in any Tranche then outstanding (which shall be on the same terms as, and become part of, the Tranche proposed to be increased hereunder (each, a “Commitment Increase”), and (or additional amount of its Revolving Credit Commitment); provided, however, that:
(aii) the aggregate addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Facility”; and any advance made by a Lender thereunder, a “New Loan”; and the commitments thereof, the “New Commitments”) in an amount of all such Incremental Facilities shall not to exceed the sum of (ix) the greater of (A) $300,000,000 less 130,000,000 and (B) 75% of Four Quarter Consolidated EBITDA, minus the aggregate principal amount incurred prior to the date of incurrence thereof under the First Lien Cash-Capped Incremental Equivalent Debt issued, incurred or otherwise obtained Amount (and not reclassified in reliance on this clause accordance with the provisions of the First Lien Credit Agreement) (ithe “Cash-Capped Incremental Facility”), (iiy) an unlimited amount such that, after giving Pro Forma Effect to such (the “Ratio-Based Incremental Facility (assuming Facility”) so long as the aggregate Revolving Increase Maximum Leverage Requirement is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iiiz) an amount equal to (i) all voluntary prepayments ofof pari passu Loans (including, for the avoidance of doubt, any New Loans that are pari passu in right of payment and security with the Initial Loans) made pursuant to Section 2.05(a) and (ii) all repurchases and/or cancellations of pari passu Loans (including, for the avoidance of doubt, any New Loans) made pursuant to the terms hereof (in an amount equal to the actual face amount so repaid, of the principal amount repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments thereforcancelled), in each case, to the extent not made funded with the proceeds of any long-long term indebtedness Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving LoansCredit Facility (as such term is defined in the First Lien Credit Agreement))) (it being understood the “Prepayment-Based Incremental Facility”) (such sum, at any such time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (Ix) $5,000,000 or, in the case of any New Commitments denominated in a foreign currency, the equivalent principal amount thereof then outstanding in such foreign currency, converted to Dollars in accordance with Section 1.08, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Commitments established pursuant to this Section 2.14 and Incremental Equivalent Debt incurred pursuant to Section 2.15:
(A) At the Borrower’s option, the Borrower shall be deemed to have used capacity amounts under clause (i) the Ratio-Based Incremental Facility (to the extent compliant therewith) before capacity under clauses (ii) or (iii), prior to utilization of the Prepayment-Based Incremental Facility and capacity under clause (iii) the Cash-Capped Incremental Facility, and the Borrower shall be deemed to be have used before capacity under clause the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental Facility, (iB) New Commitments pursuant to this Section 2.14 and (II) loans Incremental Equivalent Debt pursuant to Section2.15 may be incurred under clauses the Ratio-Based Incremental Facility (ito the extent compliant therewith), (ii) the Cash-Capped Incremental Facility and (iii)the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by by, at the Borrower’s option, first calculating the incurrence under clause the Ratio-Based Incremental Facility (iiwithout inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Prepayment Based Incremental Facility (where not already qualified by materiality, otherwise in all respects), except without inclusion of any amounts utilized pursuant to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Cash Capped Incremental Facility, only ) and then calculating the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than incurrence under the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Cash-Capped Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.,
Appears in 1 contract
Samples: Second Lien Credit Agreement (ZoomInfo Technologies Inc.)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower Representative shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to a Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the loans borrowed thereunder Incremental Revolving Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), the Maximum Incremental Facilities Amount, (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment and (iv) no Incremental Revolving Commitments or Incremental Letter of Credit Commitments may be included in this Agreement unless the aggregate amount of Initial Term Loan Commitments plus Incremental Term Loan Commitments plus Supplemental Term Loan Commitments exceeds $200,000,000. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by delivering creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower Representative pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower Representative and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan under the applicable Tranche of Term Loans.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrowers and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower Representative and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to A) the extent compliant therewith) before capacity under clauses (ii) Incremental Commitments will not be guaranteed by any Subsidiary of the Parent Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (iii), at the Borrower Representative’s option) junior basis by the same Collateral securing the Initial Term Loans (so long as any such Incremental Commitments (and capacity under clause (iiirelated Obligations) shall be deemed are subject to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ia Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment and with or (at the Borrower Representative’s option) junior to the Initial Term Loans, (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Initial Term Loans and (D) so long as any Initial Term Loans are outstanding, no Incremental Commitment Amendment may provide for any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Revolving Loans, and in the case of any Incremental Initial Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
Loans (c) immediately prior to and after giving effect to such Incremental Facility, any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only Lender will be required to be satisfied on provide any such Incremental Commitment unless it so agrees; (iii) the LCT Test Date; provided, however, that on the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to, the consummation of such Limited Condition Acquisition Termination Date (as defined in the Senior ABL Facility Agreement); (iv) the maturity date and the funding weighted average life to maturity of such Incremental FacilityTerm Loan Commitments shall be no earlier than or shorter than, no Event of Default under Section 9.01(a)as the case may be, (j) the Initial Term Loan Maturity Date or (k) hereof shall have occurred and be continuing;
(d) each the remaining weighted average life to maturity of the representations and warranties set forth in Section 6 and in the Initial Term Loans, as applicable (other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to than an earlier datematurity date and/or shorter weighted average life to maturity for customary bridge financings, in which case they shall which, subject to customary conditions, would either be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be automatically converted into or required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a exchanged for permanent financing which does not provide for an earlier maturity date no earlier than the Revolving Credit Termination Initial Term Loan Maturity Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant or a shorter weighted average life to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) maturity than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only remaining weighted average life to periods after the latest final maturity of the Revolving Credit Facility or Initial Term Loans, as applicable); (yv) as are incorporated into this Agreement for the benefit of all existing Lenders interest rate margins and (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended subject to reflect any Revolver Increase and the new Lender clause (or, if applicable, existing Lenderiv) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein above) amortization schedule applicable to the contrary, no Lender shall have any obligation loans made pursuant to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.the
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities The BorrowerBorrowers (an “Incremental Term Facility” on a joint and several basis as between the loans borrowed thereunder “Incremental Term Loans”Borrowers) or (b) increase the aggregate amount of the Revolving Credit Commitments may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent from time to time, request Incremental Loan Commitments from one or more Incremental Term Lenders or Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments, be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at least five the time such Incremental Loan Commitments become effective and, in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (5) Business Days prior after giving effect on a pro forma basis to the desired effective date incurrence of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesLoans, collectively, and in each case assuming for the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and purpose of this calculation that the amount proceeds of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall Term Loans are not exceed treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the sum form of (i) $300,000,000 less Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an amount such that, after giving Pro Forma Effect to “Increased Amount Date”) on which such Incremental Facility Loan Commitments are requested to become effective (assuming which shall not be less than 10 Business Days nor more than 60 days after the aggregate Revolving Increase is fully funded), the Total Leverage Ratio date of such notice (calculated on a Pro Forma Basis based on the financial statements delivered to or such other number of days as the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”may reasonably agree to), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing whether such Incremental Term Facility; provided that such Loan Commitments are commitments to make term loans with terms either different from any other then existing Term Loans (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements“Other Term Loans”)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities So long as no Event of Default under Section 9.1 (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”a) or (bf) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I exists or would arise therefrom (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of Term Loans made pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to Incremental Commitment will be used before capacity under clause (i) and (II) loans may to consummate a Limited Condition Transaction, the requirement that there be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause under Section 9.1(a) or (cf) shall only be required to be satisfied on the LCT Test date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that on (i) (A) the date Incremental Commitments will not be guaranteed by any Subsidiary of the consummation Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of such Limited Condition Acquisition payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the funding Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental FacilityLoans) and (II) so long as any Tranche CD Term Loans are outstanding, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where any mandatory prepayment provisions that do not already qualified by materiality, otherwise in all respects), except also apply to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects Term Loans (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall have be subject to junior prepayment provisions) on a maturity date no earlier pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the Revolving Credit Termination Date and proviso appearing in Section 4.4(c)) (iiother than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fbelow) any Incremental Term Facility Loans may permit voluntary and customary mandatory prepayments provide for more favorable amortization payments than the Tranche CD Term Loans, (including, for ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower maturity date and the applicable lenders providing weighted average life to maturity of such Incremental Term Facility; provided that such terms Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) shorter weighted average life to maturity than the terms under those in Tranche CD Term Loan Maturity Date or the Revolving Credit Facility when taken as a whole and, in each caseweighted average life to maturity of the Tranche CD Term Loans, as reasonably applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Administrative Agent applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (except the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for covenants the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Revolving Credit Facility Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be deemed amended incurred pursuant to reflect any Revolver Increase Section 2.1(b) or (c) (as applicable) and accordingly the new Lender requirements of this Section 2.6, including clause (oriv) of the first proviso of Section 2.6(d), if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent not apply thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Samples: Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. The After the Revolving B Commitments have been terminated and the Total Revolving B Outstandings are $0, the Borrower may from time to time increase the Aggregate Revolving A Commitments (a) add one or more incremental term loan facilities (each such increase, an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase to this Agreement at the aggregate amount option of the Revolving Credit Commitments Borrower by delivering an Increase Request substantially agreement in writing entered into by the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to Loan Parties, the Administrative Agent at least five and each Person (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with including any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount that agrees to provide a portion of its Revolving Credit Commitment such Incremental Facility (or additional amount of its Revolving Credit Commitmenteach an “Incremental Facility Amendment”); provided, however, provided that:
(a) the aggregate principal amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii))100,000,000;
(b) no Default shall exist on the effective date of such Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and would exist after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause ;
(c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth of each Loan Party contained in Section 6 and in the Article V or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be and remain true and correct in all material respects on and as of the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Facility, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause ;
(d) no existing Lender shall only be required under any obligation to provide any commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility hall be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of in such Limited Condition Acquisition Lender’s sole and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers)absolute discretion;
(e) (i) all each Incremental Term Loans Facility shall have a maturity date no earlier than the Revolving Credit Termination Date be in an aggregate principal amount of at least $5,000,000 and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Dateintegral multiples of $1,000,000 in excess thereof;
(f) any each Person providing a commitment to an Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds)shall qualify as an Eligible Assignee;
(g) except the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as otherwise provided of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 2.16, any 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such Incremental Term Facility shall be have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving A Commitments;
(i) if any Revolving A Loans are outstanding on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders date of such increase, (x) each Lender providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined Facility shall make Revolving A Loans, the proceeds of which shall be applied by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the to prepay Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity A Loans of the existing Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofA Lenders, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient necessary such that after giving effect to its thereto the outstanding Revolving A Loans each Lender shall have outstanding its Percentage are held ratably among all of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein A Lenders with a Revolving A Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving A Loans of existing Revolving A Lenders; and
(j) the existing Revolving A Lenders with a Revolving A Commitment shall on the effective date of such Incremental Facility be deemed to have made such assignments (which assignments shall not be subject to the contrary, no Lender shall have any obligation requirements set forth in Section 11.06(b)) of the outstanding participation interests in Letters of Credit and Swing Line Loans to participate in any the Lenders providing such Incremental Facility and no Lender’s the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Revolving Credit A Lender with a Revolving A Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any (including the Lenders providing such Incremental Facility) will hold participation interests in Letters of Credit and Swing Line Loans equal to its pro rata share thereof.
Appears in 1 contract
Samples: Credit Agreement (Trex Co Inc)
Incremental Facilities. The Borrower may (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add additional Term Loans or add one or more incremental additional tranches of term loan facilities loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) ; each such increase or (b) increase tranche, an “Incremental Facility). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount equal to $125.0 million (the “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 (each such thatIncremental Facility, after giving Pro Forma Effect a “Ratio-Based Incremental Facility”) so long as (A) with respect to any such Incremental Facility (assuming secured on a pari passu basis with the aggregate Revolving Increase is fully funded)Obligations, the Total Senior Secured First Lien Net Leverage Ratio (calculated Ratio, determined on a Pro Forma Basis based Basis, is equal to or less than the Closing Date Senior Secured First Lien Net Leverage Ratio, (B) with respect to any such Incremental Facility secured on a junior basis to the financial statements delivered Obligations, the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis, is equal to or less than the Closing Date Senior Secured Net Leverage Ratio or (C) with respect to any such unsecured Incremental Facility, the Total Net Leverage Ratio, determined on a Pro Forma Basis, is equal to or less than the Closing Date Total Net Leverage Ratio. Each tranche of Incremental Term Loans shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $15.0 million (or such lesser minimum amount approved by the Administrative Agent pursuant to Section 8.05(a) in its reasonable discretion); provided that such amount may be less than the applicable minimum amount or integral multiple amount if such amount represents all the remaining availability under the Non-Ratio-Based Incremental Facility Cap or in respect of Ratio-Based Incremental Facilities.
(b) hereof immediately prior Each notice from the Borrower pursuant to such Revolver Increase) this Section 2.19 shall not exceed 3.50 to 1.00; provided that if set forth the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election requested amount and proposed terms of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of relevant Incremental Term Loans, . Incremental Equivalent Debt and Revolving Term Loans may be provided by any existing Lender (in the case of Revolving it being understood that no existing Lender will have an obligation to provide Incremental Term Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, on terms permitted under this Section 2.19 or any Additional Lender; provided that the Administrative Agent shall have consented (in each case, such consent not made with to be unreasonably withheld, delayed or conditioned) to any Additional Lender’s providing such Incremental Term Loans if such consent by the proceeds Administrative Agent would be required under Section 9.04 for an assignment of Term Loans to such Additional Lender. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender or Additional Lender providing such Incremental Facility and the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any long-term indebtedness (excludingIncremental Facility Amendment, for this Agreement and the avoidance of doubtother Loan Documents, Revolving Loans) (it being understood that (I) the Borrower as applicable, shall be deemed amended to have used capacity under clause the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility and the Incremental Term Loans evidenced thereby.
(i) (to Any Incremental Facility may, at the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)discretion of the Borrower, (iiA) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and with the Obligations, (B) be subordinated in right of payment to the Obligations, (C) be secured on a pari passu basis with the Revolving LoansObligations, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and (D) be secured on a junior basis to the Obligations or (E) be unsecured; provided that (1) if subordinated or secured (except to the extent incurred under the terms of this Agreement), any intercreditor or lien subordination arrangements shall be reasonably satisfactory to the Administrative Agent and (2) if secured on a pari passu basis with the Revolving Obligations, such Incremental Facility shall be on terms and pursuant to documentation applicable to the Obligations (and if not secured on a pari passu basis with the Obligations, shall be pursuant to separate documentation), (ii) any Incremental Facility may provide for the ability of the Lenders or Additional Lenders providing such Incremental Facility to participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments of the Term Loans, (iii) the interest rate, upfront fees and original issue discount for any Incremental Term Loans shall be as determined by the Borrower and the Lenders or may Additional Lenders providing such Incremental Facility; provided that in the event that the yield on such Incremental Facility (taking into account interest margins, minimum Adjusted LIBO Rate, minimum ABR, upfront fees and original issue discount on such Incremental Term Loans, with upfront fees and original issue discount being equated to interest margins based on an assumed four year life to maturity, but exclusive of any arrangement, syndication, structuring, commitment or other fees payable in connection therewith) (the “Incremental Yield”) exceeds the yield on the Term Loans hereunder (determined as provided in the immediately preceding parenthetical) by more than 0.50%, then the interest margins for the Term Loans hereunder shall automatically be unsecured;increased to a level such that the yield on such Term Loans is 0.50% below the Incremental Yield (it being agreed that any increase in yield to any existing facility required due to the application of an Adjusted LIBO Rate or ABR “floor” on any Incremental Facility shall be effected solely through an increase therein (or implementation thereof, as applicable)) and (iv) except as otherwise provided in this Section 2.19, all other terms of such Incremental Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the Lenders or Additional Lenders providing such Incremental Facility, with such other terms not consistent with the Term Loans hereunder to be reasonably satisfactory to the Administrative Agent.
(cd) Without the prior written consent of the Required Lenders, (i) the final maturity date of any Incremental Facility shall be no earlier than the Latest Maturity Date, (ii) the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Facility with the longest Weighted Average Life to Maturity and (iii) subject to clauses (i) and (ii), the amortization schedules applicable to such Incremental Facility shall be as determined by the Borrower and the Lenders or Additional Lenders thereunder.
(e) Notwithstanding the foregoing, no Incremental Facility Amendment shall become effective unless, on the date of such effectiveness (each, an “Incremental Facility Closing Date”), (i) the representations and warranties set forth in the Loan Documents are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which such case such representations and warranties shall be true and correct in all material respects as of such earlier date) and (ii) at the time of and immediately prior after such effectiveness, no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Incremental Term Loans; provided that if the proceeds of such Incremental Term Loans are, substantially concurrently with the receipt thereof, to be used by the Borrower or any Loan Party to finance, in whole or in part, a Permitted Business Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (A) the Specified Representations and (B) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Parent, the Borrower or any other Subsidiary has the right to terminate the obligations of Parent, the Borrower or such other Subsidiary under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement). The proceeds of any Incremental Term Loans will be used for general corporate purposes (including financing capital expenditures, Permitted Business Acquisitions, Restricted Payments, refinancing of Indebtedness and any other transaction not prohibited hereunder).
(f) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to issue one or more series of Incremental Equivalent First Lien Term Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental FacilityEquivalent First Lien Term Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.19(a); provided that the incurrence of any Incremental Equivalent First Lien Term Debt shall reduce, on a dollar-for-dollar basis, the aggregate amount of Incremental Facilities permitted to be incurred under Section 2.19(a). As a condition precedent to the issuance of any Incremental Equivalent First Lien Term Debt pursuant to this Section 2.19(f), (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of issuance of the Incremental Equivalent First Lien Term Debt signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of the applicable financing documentation in respect of such Incremental Equivalent First Lien Term Debt and the issuance of such Incremental Equivalent First Lien Term Debt, and certifying that the conditions precedent set forth in the following subclauses (ii) through (vii) have been satisfied, (ii) such Incremental Equivalent First Lien Term Debt shall rank pari passu or junior in right of payment to the Obligations and shall not have guarantees from any Subsidiary that is not a Subsidiary Loan Party, (iii) such Incremental Equivalent First Lien Term Debt shall have a final maturity no earlier than the Latest Maturity Date at the time of issuance, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent First Lien Term Debt shall not be (A) shorter than the Weighted Average Life to Maturity of any remaining Term Loans or (B) subject to any amortization prior to the final maturity thereof or subject to any mandatory redemption or prepayment provisions or rights (except customary asset sale or change of control provisions), except to the extent arising on the Latest Maturity Date at the time of issuance, (v) no Event of Default shall have occurred and be continuing; provided that if continuing or would result from the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding incurrence of such Incremental FacilityEquivalent First Lien Term Debt and (vi) the covenants, no Event events of Default under Section 9.01(a)default, (j) or (k) hereof shall have occurred guarantees and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date terms of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they Equivalent First Lien Term Debt shall be true and correct customary for similar debt securities in all material respects (where not already qualified by materiality, otherwise in all respects) as light of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then then-prevailing market conditions at the election time of the Borrowerissuance and in any event not more restrictive, the foregoing condition in this clause (d) shall only be required taken as a whole, to be satisfied on the LCT Test Date; providedParent, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either other Subsidiaries than those set forth in this Agreement (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, other than with respect to interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andprovisions), in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity Latest Maturity Date at the time of issuance (provided that a certificate of a Responsible Officer delivered to the Administrative Agent in good faith prior to the incurrence of such Incremental Equivalent First Lien Term Debt, together with a reasonably detailed description of the Revolving Credit Facility material terms and conditions of such Incremental Equivalent First Lien Term Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may vi), shall be accomplished without further amendment voting requirements)conclusive evidence that such terms and conditions satisfy such requirement). The effective date of the Incremental Facility This Section 2.19 shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provisions in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.08 to the contrary. For the avoidance of doubt, no existing Lender shall have any obligation will be required to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityEquivalent First Lien Term Debt.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (Smart & Final Stores, Inc.)
Incremental Facilities. The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower may to the Administrative Agent, increase the Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the definition therein)) and/or the Aggregate Revolving B Commitments and/or establish one or more Incremental Term Loans, by a maximum aggregate amount not to exceed the Incremental Amount, as follows (in each case, subject to Section 1.02(d)):
(a) add one or more incremental term loan facilities (an “Incremental Term Facility” The Borrowers may at any time and from time to time, upon prior written notice by the loans borrowed thereunder “Incremental Term Loans”) or (b) applicable Borrower to the Administrative Agent, increase the aggregate amount Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Revolving Credit Commitments by delivering an Increase Request substantially Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the form attached hereto as Exhibit I (definition therein)) with additional Revolving A Commitments from any existing Revolving A Lender or in such new Revolving A Commitments from any other form Person selected by the Company and reasonably acceptable to the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such increase;
(iii) no existing Revolving A Lender shall be under any obligation to increase its Revolving A Commitment and any such decision whether to increase its Revolving A Commitment shall be in such Revolving A Lender’s sole and absolute discretion;
(1) any new Revolving A Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Revolving A Lender electing to increase its Revolving A Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent at least five (5x) Business Days prior to a certificate of each Credit Party that has guaranteed the desired effective Obligations of such Borrower dated as of the date of such increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (y) a certificate of the “Revolver Increase” and together with any Incremental Term Facilities, collectively, Company signed by an Authorized Officer of the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, Company certifying that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewithA) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a)increase, (jI) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth contained in Section 6 Article V and in the other Loan Documents shall be and remain are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)increase, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (where not already or, if qualified by materialitymateriality or reference to Material Adverse Effect, otherwise in all respects) as of such earlier date; provided that if date and (II) no Event of Default exists and (B) immediately after giving pro forma effect to the proceeds increase of the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionAggregate Revolving A Commitments (assuming for such calculation that such increase is fully drawn), then at the election Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the Borrowerend of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the foregoing condition Administrative Agent and each Lender, dated as of the effect date of such increase; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving A Commitments pursuant to this clause (dSection 2.18(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall only be required to be satisfied on the LCT Test Date; provided, however, that prepay any Revolving A Loans owing by them and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the consummation extent necessary to keep the outstanding Revolving A Loans ratable with any revised Revolving A Commitments arising from any non-ratable increase in the Revolving A Commitments under this Section.
(b) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving B Commitments with additional Revolving B Commitments from any existing Revolving B Lender or new Revolving B Commitments from any other Person selected by the Company and acceptable to the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such increase;
(iii) no existing Revolving B Lender shall be under any obligation to increase its Revolving B Commitment and any such decision whether to increase its Revolving B Commitment shall be in such Revolving B Lender’s sole and absolute discretion;
(1) any new Revolving B Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Revolving B Lender electing to increase its Revolving B Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Limited Condition Acquisition Borrower dated as of the date of such increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (y) a certificate of the Company signed by an Authorized Officer of the Company certifying that, (A) before and after giving effect to such increase, (I) the representations and warranties contained in Article V and the funding of the Incremental Facility, only the Specified Representations shall have to be other Loan Documents are true and correct in all material respects (without duplication or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality qualifiersor reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Event of Default exists and (B) immediately after giving pro forma effect to the increase of the Aggregate Revolving B Commitments (assuming for such calculation that such increase is fully drawn), the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such increase; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving B Commitments pursuant to this Section 2.18(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall prepay any Revolving B Loans owing by them and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving B Loans ratable with any revised Revolving B Commitments arising from any non-ratable increase in the Revolving B Commitments under this Section.
(c) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, institute an Incremental Term Loan; provided that:
(i) the applicable Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld), which Lenders shall join this Agreement as Incremental Term Lenders by executing an Incremental Term Loan Lender Joinder Agreement;
(eii) (i) all any such Incremental Term Loans Loan shall have be in a maturity minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(iii) subject to Section 1.02(d), no Event of Default shall exist and be continuing at the time of any such institution;
(iv) no existing Lender shall be under any obligation to become an Incremental Term Lender and any such decision whether to become an Incremental Term Lender shall be in such Lender’s sole and absolute discretion;
(v) the Incremental Term Loan Maturity Date for such Incremental Term Loan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan; provided, that such date no shall not be earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Latest Maturity Date;
(fvi) any the scheduled principal amortization payments under such Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingLoan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan; provided, for that the avoidance weighted average life to maturity of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds)such Incremental Term Loan shall not be shorter than the then-remaining weighted average life to maturity of the Initial Term Loan;
(gvii) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing currency of such Incremental Term Facility; provided that such terms either Loan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement;
(Aviii) reflect (as determined each Incremental Term Loan shall rank pari passu in right of payment and security with the Obligations and shall be secured only by the Borrower Collateral and shall be guaranteed only by the Guarantors;
(ix) other than as set forth in good faith clauses (v), (vi) and the Administrative Agent acting reasonably(vii) market above, such Incremental Term Loan shall have terms and conditions (taken that are the same as a wholethe then-existing Term Loan(s) at the time of incurrence or effectiveness or (B) are or, if not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than consistent with the terms under those in of the Revolving Credit Facility when taken as a whole andthen-existing Term Loan(s), in each case, as shall be reasonably determined by the Borrower and satisfactory to the Administrative Agent (except for it being agreed that the following shall be reasonably satisfactory to the Administrative Agent: (A) covenants or other provisions (x) applicable only to periods after the latest final maturity Latest Maturity Date of the Revolving Credit Facility then-existing Term Loans or (y) as that are incorporated into this Agreement added for the benefit of all the Administrative Agent and the Lenders under the then-existing Lenders Term Loans and (B) to the extent required by the lenders providing the Incremental Term Loan, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be accomplished without further amendment voting requirementsapplicable solely with respect to such Incremental Term Loans; provided, that, to the extent an excess cash flow prepayment is required in connection with the establishment of an Incremental Term Loan, such excess cash flow mandatory prepayment shall be applied ratably to all then-existing Term Loans)). The effective ;
(x) as a condition precedent to such institution, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the date of such institution signed by an Authorized Officer of such Credit Party certifying and attaching the Incremental Facility shall be agreed upon resolutions adopted by such Credit Party approving or consenting to such institution, and (y) a certificate of the Borrower Company signed by an Authorized Officer of the Company, certifying that, (A) before and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans such institution and subject to Section 1.02(d), (I) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (II) no Event of Default exists and (B) subject to Section 1.02(d), immediately after giving pro forma effect to the institution of the Incremental Term Loan, the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender Lender, dated as of the effect date of such institution; (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such institution;
(xi) such Incremental Term Loan shall share ratably in any prepayments of any existing Term Loan pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for any existing Term Loan) and shall have outstanding its Percentage of all Revolving Loans outstanding under ratable voting rights as any existing Term Loan (or otherwise provide for more favorable voting rights for the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment existing Term Loans); and
(xii) Schedule 2.01 shall be increased without its consent thereto, deemed revised to reflect the commitments and each commitment percentages of the Incremental Term Lenders as set forth in the Incremental Term Loan Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityJoinder Agreement.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Incremental Facilities. The Borrower may by written notice to the Revolver Administrative Agent elect to request prior to the Revolving Credit Termination Date, increases to the existing Revolving Credit Commitments (aany such increase, the “New Revolving Credit Commitments”) add and/or enter into one or more incremental tranches of term loan facilities loans (each, an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with in minimum increments of $1,000,000 (or such lesser amount as may be approved by the Revolver Administrative Agent), so long as after giving effect to such New Revolving Credit Commitments or Incremental Term Loans and the application of the proceeds thereof on a pro forma basis (without netting the cash proceeds of any long-term indebtedness such Incremental Term Loans incurred on such date and, in the case of any New Revolving Credit Commitments, assuming full utilization 50 of such New Revolving Credit Commitments (excludingwhether or not fully drawn) and the cash proceeds of any borrowing of Indebtedness under Section 11.6(h) being incurred at such time for purposes of determining the Leverage Ratio, but shall otherwise give pro forma effect to the intended use of proceeds thereof and all other pro forma adjustments), (i) the aggregate amount of the Total Revolving Credit Commitments (inclusive of any New Revolving Credit Commitments, Revolving Credit Loans and Letters of Credit Outstanding) and Incremental Term Loans does not exceed $300,000,000 and (ii) the Borrower is in pro forma compliance with the financial covenants in Section 11.15. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Revolver Administrative Agent, the Borrower shall provide to the Revolver Administrative Agent a certificate certifying that the aggregate amount of the Total Revolving Credit Commitments (inclusive of any New Revolving Credit Commitments, Revolving Credit Loans and Letters of Credit Outstanding) and any Incremental Term Loans does not exceed $300,000,000, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Credit Commitments shall be effective or the Incremental Term Loans shall be made. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Revolving Credit Commitments or any Incremental Term Loan; provided that any Lender offered or approached to provide all or a portion of the New Revolving Credit Commitments or Incremental Term Loans may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or Incremental Term Loan. In each case, such New Revolving Credit Commitments shall become effective, or such Incremental Term Loans shall be made, as of the applicable Increased Amount Date; provided that (1) both before and after giving effect to such New Revolving Credit Commitments or Incremental Term Loans, as applicable, each of the conditions set forth in Section 7.1 shall be satisfied, (2) any Revolving Credit Loans made pursuant to any New Revolving Credit Commitments shall be an increase to the existing Revolving Facility hereunder and be on the same terms as the existing Revolving Credit Commitments and Revolving Credit Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to the Revolving Loans) Credit Documents, with such additional amendments thereto as may be necessary or appropriate in the judgment of the Revolver Administrative Agent to effect such New Revolving Credit Commitments, (it being understood that (I3) the Borrower New Revolving Credit Commitments shall be deemed effected pursuant to have used capacity under clause (i) (one or more Joinder Agreements executed and delivered by the Borrower and the Revolver Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (irequirements set forth in Section 5.4(e), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c4) immediately prior to to, and after giving effect to to, the incurrence of such New Revolving Credit Commitments or Incremental FacilityTerm Loan, no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Revolving Credit Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already or if such representations are qualified by materialitymateriality or subject to a “material adverse effect” or similar term or qualification, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) representations and warranties shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects respects) and (without duplication of materiality qualifiers);
(e5) (i) all the Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and effected pursuant to documentation to be agreed between one or more amendments (each, an “Incremental Amendment”) executed and delivered by the Borrower Borrower, the Revolver Administrative Agent and the each applicable lenders providing Lender for such Incremental Term Facility; provided that Loans, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (6) such terms either (A) reflect New Revolving Credit Commitments are subject to the MFN Protection (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the described below). The All-In Yield applicable to any New Revolving Credit Facility when taken as a whole and, in each case, as reasonably Commitments or Incremental Term Loan will be determined by the Borrower and the Administrative Agent applicable Lenders providing such New Revolving Credit Commitments or Incremental Term Loan; provided that with respect to any New Revolving Credit Commitments or Incremental Term Loan (except for covenants other than New Revolving Credit Commitments or other provisions (x) applicable only Incremental Term Loans that are unsecured or secured on a junior basis to periods after the latest final maturity of the Revolving Credit Facility or (y) as that are incorporated into this Agreement not provided by commercial banks), the All-In Yield will not be more than 0.50% higher than the corresponding All-In Yield for the benefit of all existing Lenders Revolving Facility (which may be accomplished without further amendment voting requirements)). The effective date of calculated in the Incremental Facility shall be agreed upon by the Borrower same manner and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding any amendment to interest rate margins under the Revolving Credit Commitments. Notwithstanding anything herein Facility after the Closing Date but prior to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s date of the addition of such New Revolving Credit Commitment Commitments or Incremental Term Loan), unless the interest rate margins with respect to the Revolving Facility are increased by an amount equal to the difference between the All-In Yield with respect to such New Revolving Credit Commitments or Incremental Term Loan and the corresponding All-In Yield on the existing Revolving Facility minus 0.50%; provided, further, that, if any New Revolving Credit Commitments or Incremental Term Loan includes a Term SOFR or ABR floor that is greater than the Term SOFR or ABR floor applicable to the Revolving Facility, such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of this paragraph but only to the extent an increase in the Term SOFR or ABR floor applicable to the existing Revolving Facility would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR and ABR floors (but not the applicable margin) applicable to the existing Revolving Facility shall be increased without its consent theretoto the extent of such differential between interest rate floors (this paragraph, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythe “MFN Protection”).
Appears in 1 contract
Samples: Credit Agreement (Altus Power, Inc.)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and and, together with the loans borrowed thereunder Incremental Term Loan Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase I-1 (the “Revolver Increase” and together with any Increase Supplement”) or by each Additional Incremental Term Facilities, collectively, Lender substantially in the form attached hereto as Exhibit I-2 (the “Incremental FacilitiesLender Joinder Agreement”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such thatas the case may be, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Supplemental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower Loan Commitment shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;Loan.
(d) each of the representations and warranties set forth in Section 6 and in Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materialityDocuments, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the Administrative Agent (except for covenants or consent of any other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofLender, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.such
Appears in 1 contract
Samples: Second Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” at any time and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable from time to time prior to the Administrative Agent) date that is three years after the Restatement Effective Date, by notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly deliver a copy to Section 8.05(aeach of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (ban "Incremental Revolving Facility") hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00or a combination thereof; provided that if at the proceeds time of any such request and upon the effectiveness of the Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofbelow, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio no Default shall only be required to be satisfied on the LCT Test Date exist and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (iin the aggregate) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)$150,000,000, and capacity under clause each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (iiia) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche C Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (c) shall have a weighted average life that is longer than that of the Revolving Credit Commitments, the Tranche A Term Loans and the Tranche C Term Loans, taken as a whole, and (d) for purposes of prepayments, shall be secured on a pari passu basis with treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, and in the case of an Incremental Revolving Facility; provided that (i) the terms and conditions applicable to any Incremental Facility maturing after the Tranche C Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche C Maturity Date and (ii) the Incremental Facilities may be priced differently than the Term Facility only, may also rank junior in right of payment Loans and be secured on a junior basis with the Revolving Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental Facility. 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 (any such bank or may other financial institution being called an "Additional Lender"), to extend commitments under the Incremental Facility, and each existing Lender shall be unsecured;
(c) immediately prior afforded an opportunity, but shall not be required, to and after giving effect to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, no Event of Default and each Additional Lender shall have occurred and be continuing; provided that if the proceeds of the become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility are used substantially concurrently Amendment") to finance a Limited Condition Acquisitionthis Agreement and, then at as appropriate, the election of other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the foregoing condition Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this clause (c) Section. The effectiveness of any Incremental Facility Amendment shall only be required subject to be satisfied on the LCT Test Date; provided, however, that satisfaction on the date thereof of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties conditions set forth in Section 6 and 4.02 (it being understood that all references to "the date of such Borrowing" in the other Loan Documents such Section 4.02 shall be and remain true and correct in all material respects on deemed to refer to the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the . The proceeds of the Incremental Facility are Facilities will be used substantially concurrently to finance a Limited Condition Acquisitionfor general corporate purposes, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, including consideration for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityPermitted Acquisitions.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Cumulus Media Inc)
Incremental Facilities.
(a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (awhereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) add one or more incremental tranches of term loan facilities loans (each such tranche, an “Incremental Term FacilityLoan” and collectively, the loans borrowed thereunder “Incremental Term Loans”) or (by) increase one or more increases in the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in each such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (increase, a “Revolving Commitment Increase” and, together with the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyLoans, the “Incremental FacilitiesLoans”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:: 46
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less both at the aggregate principal amount time of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount any such that, after giving Pro Forma Effect to such Incremental Facility (assuming request and upon the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds effectiveness of any Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing below (a an “Limited Condition AcquisitionIncremental Loan Closing Date”), then at the election no Default or Event of the Borrower, the foregoing calculation of the Total Leverage Ratio Default shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and exist after giving effect to such Incremental Facility, no Event the extension of Default shall have occurred and be continuing; provided that if the proceeds of credit contemplated on the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Loan Closing Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(dii) each of the representations and warranties set forth made by any Loan Party in Section 6 and in or pursuant to the other Loan Documents shall be and remain true and correct in all material respects on and as of the effective date Incremental Loan Closing Date, as if made on and as of such Incremental Facility date (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date); and
(iii) the Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the proceeds of limit set forth in the Incremental Facility are used substantially concurrently next sentence). Notwithstanding anything to finance a Limited Condition Acquisition, then at the election of the Borrowercontrary herein, the foregoing condition in this clause (d) aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);not exceed $300,000,000.
(eb) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans (i) all Incremental Term Loans shall have a maturity date no not mature earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms terms, including with respect to interest rate and amortization, and pursuant to documentation documentation, to be agreed between determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans made pursuant to a Revolving Commitment Increase shall be identical to the terms of the existing Revolving Commitments and Revolving Loans.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the applicable lenders providing such relevant Incremental Loans. Incremental Term Facility; provided that such terms either (A) reflect (Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants any such other bank or other provisions financial institution being called an “Additional Lender”); provided that (xi) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in provide any Incremental Facility Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and no (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender.
(d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Credit Commitment Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be increased without its consent thereto, bound by and each Lender may at its option, unconditionally entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term Loans and without cause, decline to participate in Revolving Commitment Increases for any Incremental Facilitypurpose not prohibited by this Agreement.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to a Tranche of Term Loans (the “Supplemental Term Loan Commitments” and and, together with the loans borrowed thereunder Incremental Term Loan Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinance other Indebtedness), an amount that could then be Incurred in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan under the applicable Tranche of Term Loans.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrower and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and, if secured, will be secured by the same Collateral securing the Initial Term Loans and the Incremental B-1 Term Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the extent compliant therewith) before capacity under clauses (ii) ABL/Term Loan Intercreditor Agreement or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ian Other Intercreditor Agreement), (iiB) and (iii)if secured, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Initial Term Loans and the Incremental B-1 Term Loans, (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Initial Term Loans and the Incremental B-1 Term Loans, and (D) so long as any Initial Term Loans or Incremental B-1 Term Loans are outstanding, no Incremental Commitment Amendment may provide for any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Revolving Loans, and in the case of any Incremental Initial Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
Loans (c) immediately prior to and after giving effect to such Incremental Facility, any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only Lender will be required to be satisfied on provide any such Incremental Commitment unless it so agrees; (iii) the LCT Test Date; provided, however, that on the maturity date of the consummation of such Limited Condition Acquisition and the funding weighted average life to maturity of such Incremental FacilityTerm Loan Commitments shall be no earlier than or shorter than, no Event of Default under Section 9.01(a)as the case may be, (j) the Initial Term Loan Maturity Date or (k) hereof shall have occurred and be continuing;
(d) each the Incremental B-1 Term Loan Maturity Date or the remaining weighted average life to maturity of the representations Initial Term Loans and warranties set forth in Section 6 and in the Incremental B-1 Term Loans, as applicable (other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to than an earlier datematurity date and/or shorter weighted average life to maturity for customary bridge financings, in which case they shall which, subject to customary conditions, would either be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be automatically converted into or required to be satisfied on exchanged for permanent financing which does not provide for an earlier maturity date than the LCT Test Date; provided, however, that on Initial Term Loan Maturity Date or a shorter weighted average life to maturity than the date remaining weighted average life to maturity of the consummation of such Limited Condition Acquisition Initial Term Loans and the funding of Incremental B-1 Term Loans, as applicable); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility Commitments shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent applicable Incremental Lenders; provided that (except 1) in the event that the applicable interest rate margins for covenants any term loans Incurred by the Borrower under any Incremental Term Loan Commitment made are higher than the applicable interest rate margin for the Initial Term Loans, by more than 50 basis points, then the Applicable Margin for the Initial Term Loans, shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans, is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points (the “Initial Term Loan MFN Provision”) and (2) in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment made are higher than the applicable interest rate margin for the Incremental B-1 Term Loans, by more than 50 basis points, then the Applicable Margin for the Incremental B-1 Term Loans, shall be increased to the extent necessary so that the applicable interest rate margin for the Incremental B-1 Term Loans, is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points (the “Incremental B-1 Term Loan MFN Provision”); provided that, such 50 basis points “most favored nation” protection provisionInitial Term Loan MFN Provision and/or Incremental B-1 Term Loan MFN Provision shall not apply to (I) an Incremental Term Loan facility that is unsecured, subordinated or secured on a junior lien basis to the Term Loan Facility Obligations, (II) Incremental Term Loans incurred pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount” in an amount up to the greater of $270,000,000 and 100% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, (III) any Incremental Term Loan facility that is used to fund a permitted Acquisition or permitted Investment or (IV) any Incremental Term Loan facility that matures on or after the second anniversary of the Initial Term Loan Maturity Date (or the “MFN Provision”)Incremental B-1 Term Loan Maturity Date; provided, further that, in determining the applicable interest rate margins (the “Yield”) for the Initial Term Loans andor the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans, the Incremental B-1 Term Loans or any other Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term Loans or the Incremental B-1 Term Loans are issued in a manner such that all Initial Term Loans and Incremental B-1 Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans or Incremental B-1 Term Loans, as applicable, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans or Incremental B-1 Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Initial Term Loans or the Incremental B-1 Term Loans that became effective subsequent to the Closing Date butand the Fourth Amendment Effective Date, respectively, but, in each case, prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans or the Incremental B-1 Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans or the Incremental B-1 Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans or the Incremental B-1 Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans or the Incremental B-1 Term Loans, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations”, “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b), in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date or the Incremental B-1 Term Loan Maturity Date, as applicable, and remaining weighted average life to maturity of the Revolving Credit Facility Initial Term Loans or the Incremental B-1 Term Loans, as applicable, to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower; provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans and the Incremental B-1 Term Loans (except to the extent permitted by clauses (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAdministrative Agent.
Appears in 1 contract
Samples: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.)
Incremental Facilities. The Borrower may (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent, add additional Tranche B Term Loans or add one or more incremental term loan facilities additional tranches of Term Loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of ” and, each such increase (the “Revolver Increase” and together with any Incremental Term Facilitiesor tranche, collectively, the an “Incremental FacilitiesFacility”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such provided that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant subject to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility1.9, no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then continuing at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation time of such Limited Condition Acquisition incurrence of Incremental Term Loans or would result therefrom, and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) which case such representations and warranties shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects as of such earlier date (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andthat, in each case, such materiality qualifier shall not be applicable to any representations or warranties that already are qualified by materiality or Material Adverse Effect). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Term Loans shall not exceed the aggregate principal amount of Tranche B-1 Term Loans to be prepaid substantially concurrently with such Incremental Term Loans (except to the extent of accrued interest on, and breakage costs with respect to, such Tranche B-1 Term Loans). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder.
(b) Any Incremental Term Loans (i) shall rank pari passu in right of payment and security with the outstanding Term Loans, (ii) for purposes of mandatory prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than (but not more favorably than)) the Tranche B-2 Term Loans and (iii) other than amortization, maturity date, optional prepayments and redemptions 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-2 Term Loans or such terms as are reasonably determined by the Borrower and satisfactory to the Administrative Agent (except for covenants and other such terms that are (A) added to this Agreement for benefit of the Term Loan Lenders or other provisions (xB) applicable only to periods after the latest Latest Maturity Date of the Term Loans); provided that (A) if the All-In Yield with respect to such Incremental Term Loans determined as of the initial funding date for such Incremental Term Loans exceeds the All-In Yield with respect to the Tranche B-2 Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Tranche B-2 Term Loans shall be adjusted and/or the Borrower will pay additional fees to Lenders holding Tranche B-2 Term Loans in order that such All-In Yield with respect to such Incremental Term Loans shall not exceed such All-In Yield with respect to the Tranche B-2 Term Loans by more than 0.50% (the “MFN Adjustment”); provided that, if any such Incremental Term Loans include a LIBO Rate floor or an Alternate Base Rate floor that is greater than the LIBO Rate floor or Alternate Base Rate floor applicable to the Tranche B-2 Term Loans, such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of the MFN Adjustment, but only to the extent an increase in the LIBO Rate floor or Alternate Base Rate floor applicable to the Tranche B-2 Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the LIBO Rate floor and Alternate Base Rate floor (but not the Applicable Margin) applicable to the Tranche B-2 Term Loans shall be increased to the extent of such differential between interest rate floors, (B) except in the case of a bridge loan which provides for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the then Latest Maturity Date of the Term Loans, any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the Revolving Credit Facility then remaining Term Loans in effect at the time such Incremental Term Loans are incurred, (C) except in the case of a bridge loan which provides for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the then Latest Maturity Date of the Term Loans (and otherwise satisfies the requirements of this clause (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 then remaining Term Loans in effect at the time such Incremental Term Loans are incurred and (D) any Incremental Term Loans consisting of an increase to any Class of Term Loans shall have terms identical to the such Class of Term Loans (excluding upfront fees and customary arranger fees).
(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. Any Additional Lenders that elect to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and (unless such Additional Lender is already a Lender or (yan Affiliate of a Lender or an Approved Fund) as are incorporated into the Administrative Agent, and, if not already a Lender, shall become a Lender under this Agreement for the benefit of all existing Lenders pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (which shall be reasonably satisfactory to the Administrative Agent) (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the 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. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. 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 accomplished without further amendment necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including to provide for class voting requirementsprovisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). The effective 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 waiver on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to the date of making any extension of credit in Section 4.2 shall be deemed to refer to the Incremental Facility shall Closing Date). The proceeds of any Incremental Facility will be agreed upon used to make the prepayment of Tranche B-1 Term Loans described in Section 2.15(e)(ii) (together with any accrued interest on, and breakage costs with respect to, such Tranche B-1 Term Loans). To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Amendment Effective Date under Section 4 of the Amendment Agreement with respect to the Borrower and the Lenders providing the Incremental FacilitySubsidiary Guarantors, and customary legal opinions with respect thereto. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase The Administrative Agent and the new Lender (orLenders hereby agree that the minimum borrowing, if applicable, existing Lender) pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall advance Revolving Loans in an amount sufficient such that after giving effect not apply to its Revolving Loans each Lender shall have outstanding its Percentage any of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein transactions effected pursuant to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythis Section 2.24.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” at any time and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable from time to time prior to the Administrative Agent) date that is three years after the Effective Date, by notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly deliver a copy to Section 8.05(aeach of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (ban "Incremental Revolving Facility") hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00or a combination thereof; provided that if at the proceeds time of any such request and upon the effectiveness of the Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofbelow, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio no Default shall only be required to be satisfied on the LCT Test Date exist and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (iin the aggregate) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)$150,000,000, and capacity under clause each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (iiia) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche B Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (c) shall have a weighted average life that is longer than that of the Revolving Credit Commitments, the Tranche A Term Loans and the Tranche B Term Loans, taken as a whole, and (d) for purposes of prepayments, shall be secured on a pari passu basis with treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, and in the case of an Incremental Revolving Facility; provided that (i) the terms and conditions applicable to any Incremental Facility maturing after the Tranche B Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche B Maturity Date and (ii) the Incremental Facilities may be priced differently than the Term Facility only, may also rank junior in right of payment Loans and be secured on a junior basis with the Revolving Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental Facility. 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 (any such bank or may other financial institution being called an "Additional Lender"), to extend commitments under the Incremental Facility, and each existing Lender shall be unsecured;
(c) immediately prior afforded an opportunity, but shall not be required, to and after giving effect to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, no Event of Default and each Additional Lender shall have occurred and be continuing; provided that if the proceeds of the become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility are used substantially concurrently Amendment") to finance a Limited Condition Acquisitionthis Agreement and, then at as appropriate, the election of other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the foregoing condition Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this clause (c) Section. The effectiveness of any Incremental Facility Amendment shall only be required subject to be satisfied on the LCT Test Date; provided, however, that satisfaction on the date thereof of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties conditions set forth in Section 6 and 4.02 (it being understood that all references to "the date of such Borrowing" in the other Loan Documents such Section 4.02 shall be and remain true and correct in all material respects on deemed to refer to the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the . The proceeds of the Incremental Facility are Facilities will be used substantially concurrently to finance a Limited Condition Acquisitionfor general corporate purposes, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, including consideration for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityPermitted Acquisitions.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”) and (ii) to increase the Term Loans of any Existing Term Tranche by requesting new term loan commitments to be added to such Existing Term Tranche (the “Supplemental Term Loan Commitments” and and, together with the loans borrowed thereunder Incremental Term Loan Commitments, the “Incremental Term LoansCommitments”), provided that, (i) or (b) increase the aggregate amount of Incremental Commitments established pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and, if applicable, the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount the Dollar Equivalent of which could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (iii) of the definition of “Maximum Incremental Facilities Amount,” the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) or (ii) of the definition of “Maximum Incremental Facilities Amount,” the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment and (iv) the Borrower may elect to use clause (iii) of the “Maximum Incremental Facilities Amount” prior to clause (i) and/or (ii) thereof, and if both clause (i) and/or clause (ii), on the one hand, and clause (iii) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (iii). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I I‑1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I‑2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrower and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of Holdings other than the Subsidiary Guarantors, and will be secured on a pari passu or (at Holdings’ option) junior basis by the same Collateral securing the Term Loan Facilities Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the extent compliant therewith) before capacity under clauses (ii) Intercreditor Agreement or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ian Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Term Loans”) shall rank pari passu in right of payment with or (at Holdings’ option) junior to the Term Loan Facilities Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Term Loans to be secured by any collateral or other assets of any Loan Party that do not also secure the Term Loan Facilities Obligations and (II) so long as any Term B-3 Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Term Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Term B-3 Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
B-3 Loans (c) immediately prior to and after giving effect to such Incremental Facility, any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only Lender will be required to be satisfied on provide any such Incremental Commitment unless it so agrees; (iii) the LCT Test Date; provided, however, that on the maturity date of the consummation of such Limited Condition Acquisition and the funding weighted average life to maturity of such Incremental FacilityTerm Loan Commitments shall be no earlier than or shorter than, no Event of Default under Section 9.01(a)as the case may be, (j) the Term B-3 Loan Maturity Date or (k) hereof shall have occurred and be continuing;
(d) each the remaining weighted average life to maturity of the representations and warranties set forth in Section 6 and in the Term B-3 Loans, as applicable (other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to than an earlier datematurity date and/or shorter weighted average life to maturity for customary bridge financings, in which case they shall which, subject to customary conditions, would either be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be automatically converted into or required to be satisfied on exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the LCT Test Date; provided, however, that on Term B-3 Loan Maturity Date or the date remaining weighted average life to maturity of the consummation of such Limited Condition Acquisition and Term B-3 Loans, as applicable); (iv) the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and be denominated in Dollars (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that Loans, “Incremental Dollar Term Loans”), Euro (any such terms either (AIncremental Term Loans, “Incremental Euro Term Loans”) reflect (or other currencies as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the lenders thereunder and reasonably satisfactory to the Administrative Agent Agent, (except for covenants or other v) the interest rate provisions and (xsubject to clause (iv) above) amortization schedule applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of loans made pursuant to the Incremental Facility Commitments shall be agreed upon determined by the Borrower and the Lenders providing applicable Incremental Lenders; provided that with respect to any Incremental Term Loans Incurred by the Borrower under any Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (orTerm Loan Commitment, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect the applicable interest rate relating to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent theretoDollar Term Loans is higher than the applicable interest rate for the Term B-3 Loans by more than 50 basis points, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.then the
Appears in 1 contract
Samples: Credit Agreement (Univar Inc.)
Incremental Facilities. The Borrower Company may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments at any time, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable notice to the Administrative Agent) to Agents (whereupon the Administrative Agent at least five (5) Business Days prior shall promptly deliver a copy to each of the desired effective date Lenders), request the addition of such increase new credit facilities (the “Revolver Increase” "INCREMENTAL FACILITIES") consisting of a new tranche of term loans (the "INCREMENTAL TERM LOANS") or a new tranche of revolving loans (the "INCREMENTAL REVOLVING LOANS") or a combination thereof; PROVIDED that both at the time of any such request and together with upon the effectiveness of the Incremental Facility Amendment referred to below, no Default shall exist and at the time that any such Incremental Term FacilitiesLoans or Incremental Revolving Loans, collectivelyas the case may be, the “Incremental Facilities”are made (and after giving effect thereto) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) no Default shall exist and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedCompany shall be in compliance with Sections 6.14 and 6.15, however, that:
(a) the aggregate amount of all determined on a pro forma basis as if such Incremental Term Loans or Incremental Revolving Loans, as the case may be, had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the shall be in an aggregate principal amount not exceeding (in the aggregate) $100,000,000 and shall be effected as Incremental Term Loans or Incremental Revolving Loans (except that not more than $50,000,000 of the Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iFacilities will be Incremental Revolving Loans), (ii) an amount such thatshall rank PARI PASSU in right of payment and of security with the Revolving Loans and the B Term Loans, after giving Pro Forma Effect (iii) that are effected as Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date (but may, subject to such Incremental Facility clause (assuming the aggregate Revolving Increase is fully funded)iv) below, the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately have amortization and commitment reductions prior to such Revolver Increasedate), (iv) that are effected as Incremental Term Loans shall not have a weighted average life that is shorter than that of the B Term Loans, (v) that are effected as Incremental Revolving Loans shall mature on the Revolving Loan Maturity Date, (vi) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance accrue interest at a Permitted Acquisition rate or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election rates in excess of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal interest rates applicable to the actual amount so repaidB Term Loans, repurchased and/or canceled) in the case of Incremental Term Loans, Incremental Equivalent Debt and or the Revolving Loans (Loans, in the case of the Incremental Revolving Loans, to and (vii) except as set forth above, 81 shall be treated substantially the extent accompanied by a permanent reduction same as (and in any event no more favorably than) the Revolving Credit Commitments therefor), B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), in the case of Incremental Term Loans, or the Revolving Loans, in the case of the Incremental Revolving Loans; PROVIDED that (a) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan Maturity Date and (b) subject to clause (vi) above, the Incremental Facilities may be priced differently than the B Term Loans and the Revolving Loans. Such notice shall set forth the requested amount of Incremental Term Loans or Incremental Revolving Loans, as the case may be. In the event that existing Lenders provide commitments in an aggregate amount less than the total amount of the Incremental Term Loans or Incremental Revolving Loans, as the case may be, requested by the Company (but the Company shall not made with have any obligation to request any Lender to provide any amount of the proceeds Incremental Term Loans or Incremental Revolving Loans, as the case may be), the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "ADDITIONAL LENDER") to extend commitments to provide Incremental Term Loans or Incremental Revolving Loans, as the case may be, in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans or Incremental Revolving Loans, as the case may be, shall become Commitments under this Agreement pursuant to an amendment (an "INCREMENTAL FACILITY AMENDMENT") to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agents. The Incremental Facility Amendment may, without the consent of any long-term indebtedness (excludingother Lenders, for effect such amendments to this Agreement and the avoidance other Loan Documents as may be necessary or appropriate, in the opinion of doubtthe Agents, Revolving Loans) to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.01 (it being understood that (I) all references to "the Borrower date of such Borrowing" in such Section 4.01 shall be deemed to have used capacity under clause (i) (refer to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they . No Lender shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently obligated to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all provide any Incremental Term Loans shall have a maturity date no earlier than the or Incremental Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each caseLoans, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which case may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofbe, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityunless it so agrees.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Incremental Facilities. The Borrower may (a) add Subject to the terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Borrower shall have the right, at any time and from time to time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (i) one or more incremental increases to the Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the same Facility as the existing Revolving Commitments or (ii) one or more commitments (each, an “Incremental Facility Commitment”, and together with the Increased Revolver Commitments, the “Incremental Commitments”) for term loan facilities which shall constitute a new Facility as provided in 2.22(d) below (an “Incremental Term Facility,” and the loans borrowed thereunder thereunder, “Incremental Term Loans”) or (b) increase the ), up to a maximum aggregate amount of Incremental Commitments not to exceed $400,000,000; provided that, if the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesCollateral Event has occurred, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities Commitments shall not exceed at the sum time any such Incremental Commitments are entered into the greater of (ix) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause 400,000,000 and (i), (iiy) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental FacilityCommitments (and assuming such Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the Consolidated Net Leverage Ratio does not exceed 3.00 to 1.00.1.00; provided, further, that no Event of Default Incremental Commitments shall be permitted from the Amendment No. 3 Effective Date through September 30, 2021.
(b) The following terms and conditions shall apply to each Increased Revolver Commitment: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (ii) each Increased Revolver Commitment shall have occurred the same terms (including interest rate and maturity date but other than with respect to any upfront fees) as the existing Revolving Commitments, (iii) each Increased Revolver Commitment shall be continuing; provided that if entitled to the same voting rights as the existing Revolving Commitments, voting as one class, and shall be entitled to receive a pro rata share of proceeds of prepayments on the same basis as the existing Revolving Loans and shall be considered an increase to the existing Revolving Commitments, (iv) each Increased Revolver Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below, (v) the proceeds of all Loans thereunder will be used for the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties purposes set forth in Section 6 and 3.11, (vi) the Borrower shall execute a Note in the other Loan Documents shall be and remain true and correct in all material respects favor of any new Lender or any existing Lender requesting a Note whose Revolving Commitment is increased, (vii) on the effective date of each such Incremental Facility increase, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (where not already qualified by materiality, otherwise viii) each such Increased Revolver Commitment shall be in all respectsa minimum amount of $5,000,000 (and $1,000,000 increments in excess thereof), except and (ix) the Administrative Agent shall have received from the Borrower (A) resolutions, legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to such Increased Revolver Commitment and any borrowings thereunder and the application thereof on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (provided that for purposes of this clause (b) the applicable Consolidated Net Leverage Ratio shall be 4.50 to 1.00 for any fiscal quarter and, if the Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. Any new banks, financial institutions and Funds that become Revolving Lenders that were not previously Lenders hereunder shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. In connection with the closing of any Increased Revolver Commitment, the outstanding Revolving Loans and Participation Interests shall be reallocated by causing such fundings and repayments (which shall not be subject to any processing and/or recordation fees) among the Revolving Lenders (with the Borrower responsible for any costs arising under Section 2.15 resulting from such reallocation and repayments) of Revolving Loans as necessary such that, after giving effect to such Increased Revolver Commitments, each Revolving Lender will hold Revolving Loans and Participation Interests based on its Revolving Commitment Percentage (after giving effect to such Increased Revolver Commitments).
(c) The following terms and conditions shall apply to each Incremental Facility: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the same expressly relate to an earlier dateother Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrowerrespectively, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; providedCredit Party Obligations, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any each Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on otherwise have terms and pursuant to documentation (including pricing terms) to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon Commitments (the effectiveness thereof“Incremental Lenders”) subject to the following parameters: (A) no Incremental Facility shall mature prior to the Maturity Date applicable to the Revolving Loans, Schedule 2.2 (B) mandatory prepayments customary for a term loan (which for the avoidance of doubt may include prepayments with the proceeds of non-ordinary course asset sales and “excess cash flow” (to be defined in a manner satisfactory to the Borrower and the Administrative Agent)) may be included on then-market terms, and (C) all terms of any Incremental Facility not set forth herein, shall be deemed amended reasonably satisfactory to reflect any Revolver Increase the Administrative Agent, (iii) each Incremental Facility shall constitute a separate Facility hereunder, and shall be incorporated into the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient Credit Documents such that the Incremental Lenders have similar rights and privileges to the Lenders, (iv) each Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below; provided that any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Facility Commitment may elect or decline, in its sole discretion, to provide such Incremental Facility Commitment, (v) the proceeds of each Incremental Facility will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in favor of any Incremental Lender requesting a Note representing its Loans under the Incremental Facility, (vii) on the date of incurrence of the Incremental Loans, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such commitment for an Incremental Facility shall be in a minimum amount of $5,000,000 (and $1,000,000 increments in excess thereof), and (ix) the Administrative Agent shall have received from the Borrower (A) resolutions, legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to its the borrowing of such Incremental Loans and the application thereof on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (provided that for purposes of this clause (c) the applicable Consolidated Net Leverage Ratio shall be 4.50 to 1.00 for any fiscal quarter and, if the Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. All Incremental Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request.
(d) Notwithstanding anything to the contrary in Section 9.1 or elsewhere in this Credit Agreement, the Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary solely to incorporate the terms of each Increased Revolver Commitment or Incremental Facility therein. For the avoidance of doubt, such amendments may provide for, among other things, the incorporation of such Incremental Facility into the definitions of “Required Lenders”, “Required Facility Lenders”, “Commitment Percentage”, and similar terms and sections of this Credit Agreement on a similar basis to each other existing Facility, and may provide for sharing of payments and inclusion in the waterfall, and the inclusion of customary provisions for a term loan throughout the Credit Documents.\
(e) Upon executing the joinder documentation requested by the Administrative Agent, each bank, financial institution or other entity committing to be a new Revolving Loans each Lender or Incremental Lender shall have outstanding its Percentage of become a Lender for all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein purposes and to the contrary, no Lender shall have any obligation to participate in any Incremental Facility same extent as if originally a party hereto and no Lender’s Revolving Credit Commitment shall be increased without its consent theretobound by and entitled to the benefits of this Agreement and the other Credit Documents, and each shall benefit equally and ratably from the Guarantees and security interests (if applicable) created by the Security Documents, if any; provided that any Lender offered or approached to provide all or a portion of any Increased Revolver Commitment may at elect or decline, in its optionsole discretion, unconditionally and without cause, decline to participate in any Incremental Facilityprovide such Increased Revolver Commitments.
Appears in 1 contract
Samples: Credit Agreement (Mednax, Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments The Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent from time to time, request Incremental Loan Commitments from one or more Incremental Term Lenders or Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments, be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at least five the time such Incremental Loan Commitments become effective and, in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (5) Business Days prior after giving effect on a pro forma basis to the desired effective date incurrence of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesLoans, collectively, and in each case assuming for the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and purpose of this calculation that the amount proceeds of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall Term Loans are not exceed treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the sum form of (i) $300,000,000 less Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an amount such that, after giving Pro Forma Effect to “Increased Amount Date”) on which such Incremental Facility Loan Commitments are requested to become effective (assuming which shall not be less than 10 Business Days nor more than 60 days after the aggregate Revolving Increase is fully funded), the Total Leverage Ratio date of such notice (calculated on a Pro Forma Basis based on the financial statements delivered to or such other number of days as the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”may reasonably agree to), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (ii) and then calculating the incurrence under clause (iii“Other Term Loans”));.
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental Loan Commitments to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities Loan Commitment of each Incremental Lender. The terms and related guarantees may rank pari passu provisions of the Incremental Revolving Loans shall be identical to those of the Revolving Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Revolving Loans shall be identical to all Revolving Loans, other than in right respect of payment and any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans (x) shall be secured on a pari passu basis with the Revolving Loans, (y) shall not be guaranteed by any person that is not a Guarantor and in (z) shall not be secured by any assets which do not constitute Collateral, (ii) the case final maturity date of any Incremental Term Facility onlyLoans shall be no earlier than the Revolving Maturity date, (iii) such Incremental Term Loans do not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity Date at the time such Incremental Term Loans are incurred, (iv) no Incremental Term Loans shall have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.10 hereof unless the Revolving Loans have the benefit of such financial maintenance covenant on the same terms, (v) the definitive documentation for such Incremental Term Loans shall not include other covenants, (excluding interest rate, original issue discounts, fees and prepayment premiums) taken as a whole, that are materially more onerous to the Borrower and the Guarantors than the covenants for the Revolving Loans provided for in this Agreement, taken as a whole, unless the Revolving Loans have the benefit of such covenants on the same terms and (vi) the other terms and conditions applicable to such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may also rank junior in right of payment and be secured on a junior basis not differ from those with respect to the Revolving Loans, as applicable, unless such terms and conditions are reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may be unsecured;revise this Agreement to evidence such amendments.
(c) immediately prior Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition or Permitted Drop-Down Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition or Permitted Drop-Down Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental FacilityLoan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition or Permitted Drop-Down Acquisition are entered into, no Event of Default (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall have occurred received legal opinions, board resolutions and be continuingother closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Original Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); provided that if and (v) the proceeds Borrower shall have satisfied all Mortgage Modification Requirements.
(d) Each of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionparties hereto hereby agrees that the Administrative Agent may, then at the election of in consultation with the Borrower, the foregoing condition take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Loans, when originally made, are included in this clause (c) shall only each Borrowing of outstanding Revolving Loans, on a pro rata basis. This may be required accomplished by requiring each outstanding Eurodollar Borrowing to be satisfied on the LCT Test Date; provided, however, that converted into an ABR Borrowing on the date of each Incremental Revolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the consummation of preceding sentence shall be subject to Section 2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Limited Condition Acquisition Interest Period and the funding other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement.
(e) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of such Incremental Facility, no Event of Default under Section 9.01(a)the foregoing terms and conditions, (j) or (k) hereof shall have occurred and be continuing;
(di) each of the representations existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and warranties set forth in Section 6 and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the other Loan Documents shall be outstanding Revolving Loans and remain true participations in Letters of Credit and correct Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in all material respects on Letters of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the effective date addition of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except Revolving Loan Commitments to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and Commitments, (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Increases Credit Commitment and each Loan made thereunder shall terminate on be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Credit Termination Date;Commitments and all matters relating thereto.
(f) The proceeds of any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, Loans shall be used for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those purposes specified in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only introductory statement to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAgreement.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” at any time and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments from time to time prior to April 30, 2006, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly deliver a copy to Section 8.05(aeach of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (ban "Incremental Revolving Facility") hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00or a combination thereof; provided that if at the proceeds time of any such request and upon the effectiveness of the Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofbelow, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio no Default shall only be required to be satisfied on the LCT Test Date exist and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (iin the aggregate) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)$150,000,000, and capacity under clause each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (iiia) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche E Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (c) shall have a weighted average life that is longer than that of the Revolving Credit Commitments, the Tranche A1 Term Loans and the Tranche E Term Loans, taken as a whole, and (d) for purposes of prepayments, shall be secured on a pari passu basis with treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, and in the case of an Incremental Revolving Facility; provided that (i) the terms and conditions applicable to any Incremental Facility maturing after the Tranche E Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche E Maturity Date and (ii) the Incremental Facilities may be priced differently than the Term Facility only, may also rank junior in right of payment Loans and be secured on a junior basis with the Revolving Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental Facility. 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 (any such bank or may other financial institution being called an "Additional Lender"), to extend commitments under the Incremental Facility, and each existing Lender shall be unsecured;
(c) immediately prior afforded an opportunity, but shall not be required, to and after giving effect to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, no Event of Default and each Additional Lender shall have occurred and be continuing; provided that if the proceeds of the become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility are used substantially concurrently Amendment") to finance a Limited Condition Acquisitionthis Agreement and, then at as appropriate, the election of other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the foregoing condition Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this clause (c) Section. The effectiveness of any Incremental Facility Amendment shall only be required subject to be satisfied on the LCT Test Date; provided, however, that satisfaction on the date thereof of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties conditions set forth in Section 6 and 4.02 (it being understood that all references to "the date of such Borrowing" in the other Loan Documents such Section 4.02 shall be and remain true and correct in all material respects on deemed to refer to the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the . The proceeds of the Incremental Facility are Facilities will be used substantially concurrently to finance a Limited Condition Acquisitionfor general corporate purposes, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, including consideration for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityPermitted Acquisitions.
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Samples: Amendment and Restatement Agreement (Cumulus Media Inc)
Incremental Facilities. The Borrower may (a) add At any time and from time to time, subject to the terms and conditions set forth herein, the Administrative Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of increases in the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (“Incremental Revolving Credit Commitments” or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, howeverthat at the time of the effectiveness of each Incremental Amendment, that:
no Specified ABL Default has occurred and is continuing or shall result therefrom (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issuedand, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of connection with any Incremental Facility are used substantially concurrently to finance fund a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental FacilityInvestment, no Specified Event of Default shall have occurred and be continuing; provided that if the proceeds continuing as of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of definitive acquisition agreements for such Limited Condition Permitted Acquisition and or permitted Investment entered into). Notwithstanding anything to the funding of such Incremental Facilitycontrary herein, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each without the consent of the representations and warranties set forth in Section 6 and in Required Lenders, the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds aggregate principal amount of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause Facilities shall not exceed $50,000,000 (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingwhich, for the avoidance of doubt, customary amortization paymentswill be reduced to $25,000,000 following the incurrence of the 2020 Incremental Revolving Credit Commitments on the Amendment No. 13 Effective Date). All Incremental Revolving Commitments shall be in an integral multiple of $250,000 and in an aggregate principal amount that is not less than $5,000,000 (or in such lesser minimum amount agreed by the Administrative Agent); provided, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities.
(gb) except as otherwise provided in this Section 2.16, any Any Incremental Term Facility Revolving Commitment shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to having the same Guarantors and being secured by the same Collateral on a pari passu basis with the applicable Facility subject to such increase except that the Maturity Date of an Incremental Revolving Commitment shall be no earlier (but may be later) than the Revolving Credit Commitments proposed to be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility or both Revolving Credit Facilities, as the case may be, pursuant to documentation the applicable Incremental Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Commitments will not create a separate Revolving Credit Facility and such Incremental Revolving Commitments will be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Rate and the Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Commitment such that the Applicable Rate and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments.
(c) Each notice from any Borrower pursuant to this Section 2.14 shall set forth the requested amount of the relevant Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Borrower, and, to the extent its consent would be required with respect to an assignment to such Additional Lender under Section 10.07(b), the Administrative Agent, the Swing Line Lender and each Issuing Bank (in each case, any approval thereof not to be agreed between unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Administrative Borrower, any applicable Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Amendment shall require the consent of any Lenders or any other Person other than the Administrative Borrower, any applicable Borrowers, the Administrative Agent and the Additional Lenders with respect to such Incremental Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Revolving Credit Commitments and such technical amendments as may be necessary or appropriate in the opinion of the Administrative Agent, the Administrative Borrower and the applicable lenders providing Borrower to effect the provisions of this Section 2.14 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 10.01). In addition, if so provided in such Incremental Term Amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date”) shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Administrative Agent and the Lenders in respect of such Incremental Facility; provided that , to the extent invoiced prior to such terms either date and (Aii) reflect on the date of the effectiveness of the Incremental Revolving Commitments thereunder, no Specified ABL Default shall exist after giving effect to such Incremental Revolving Commitments (or, in the case of a Permitted Acquisition, permitted Investment or Limited Condition Transaction, no Specified ABL Default (as determined by in accordance with Section 1.08(g)) shall exist on the Borrower in good faith LCT Test Date and no Specified Event of Default shall exist on the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Facility when taken as Commitments of a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into pursuant to this Agreement for the benefit of all existing Lenders (which may be accomplished Section 2.14, each Lender under such Revolving Credit Facility immediately prior to such increase will automatically and without further amendment voting requirements)). The effective date act be deemed to have assigned to each Lender providing a portion of the Incremental Facility shall be agreed upon by the Borrower Revolving Commitment (each an “Incremental Lender”) in respect of such increase, and the Lenders providing the each such Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall Lender will automatically and without further act be deemed amended to reflect any Revolver Increase and have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit under the new Lender (orapplicable Revolving Credit Facility such that, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender shall have outstanding its Percentage in such Revolving Credit Facility (including each such Incremental Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Loans outstanding under the Lenders in such Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no represented by such Lender’s Revolving Credit Commitment thereunder. Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Administrative Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Revolving Commitment, the outstanding Revolving Credit Loans are held by the Lenders in accordance with their respective Pro Rata Shares in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Administrative Agent, following consultation with the Administrative Borrower, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the Administrative Borrower, and any such prepayment or assignment shall be increased subject to Section 3.05 but shall otherwise be without its consent theretopremium or penalty. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and each pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, no existing Lender may at its option, unconditionally and without cause, decline shall be required to participate in any an Incremental FacilityFacility without its consent.
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Incremental Facilities. The Borrower may (a) add one The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or more incremental term loan facilities Incremental Revolving Credit Commitments, as applicable, in an amount (an the “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansFacility Amount”) or not to exceed the greater of (bi) increase (x) $50,000,000 (increasing on and after the Acquisition Closing Date to $75,000,000) minus (y) the aggregate amount of all Incremental Commitments established prior to such time and (ii) such other amount so long as, in the case of this clause (ii), the Secured Leverage Ratio would not, after giving effect to the making of any Loans to be made on the date of effectiveness thereof (in each case assuming all Incremental Revolving Credit Commitments are drawn on such effective date) and other pro forma adjustments in accordance with Section 1.03, exceed (x) 2.50:1.00 (increasing on and after the Acquisition Closing Date to 4.00 to 1.00), in each case, as of the date of such effectiveness. Such notice shall set forth (1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Facility Amount), (2) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice unless waived by delivering an Increase Request substantially the Administrative Agent in its sole discretion) and (3) in the form attached hereto case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders that will become Incremental Term Lenders and/or Incremental Revolving Lenders, as Exhibit I (applicable, in connection therewith; provided that any such Incremental Term Lender or in such other form Incremental Revolving Lender must be an existing Term Lender or existing Revolving Credit Lender, respectively, or be reasonably acceptable to the Administrative Agent) . The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender, as applicable, shall execute and deliver to the Administrative Agent at least five (5) Business Days prior an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the desired effective date Incremental Commitment of such increase (person. The terms and provisions of the “Revolver Increase” and together with any Incremental Term FacilitiesLoans shall be identical to those of the Term Loans except as otherwise set forth herein or in the Incremental Assumption Agreement, collectively, it being understood that the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of Term Lenders may (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this agree to yield protection terms similar to clause (i)c) below that are less favorable (but not more favorable) than the terms applicable to the other Classes of Term Loans, (ii) an amount such that, after giving Pro Forma Effect agree to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated participate on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(aless than (but not greater than) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds pro rata basis in respect of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition prepayments or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election repayments of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date Term Loans under this Agreement and (iii) an amount equal agree to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal different initial Interest Periods with respect to the actual amount so repaid, repurchased and/or canceled) of applicable Incremental Term Loans, . The terms and provisions of the Incremental Equivalent Debt and Revolving Loans (in the case Credit Commitments shall be identical to those of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not Commitments. The Loans made with the proceeds of pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower Incremental Commitment shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis security with the Revolving Loansother Loans made hereunder. Without the prior written consent of a Majority in Interest of each affected Class, and in (a) the case final maturity date of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Other Term Loans shall have a maturity date be no earlier than the Revolving Credit Termination latest Term Loan Maturity Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any or Incremental Term Facility may permit voluntary and customary mandatory prepayments Loan Maturity Date (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(gif any) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) effect at the time of incurrence or effectiveness or the Incremental Term Loan Commitments with respect to such Other Term Loans become effective, (Bb) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only weighted average life to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility Other Term Loans shall be agreed upon by no shorter than the Borrower remaining weighted average life to maturity of any other Class of Term Loans and (c) if the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.initial Yield on such
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Incremental Facilities. The Borrower may (a) The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and the any loans borrowed thereunder made pursuant to an Incremental Facility, “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of no Incremental Equivalent Debt issued, incurred or otherwise obtained Commitment in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds respect of any Incremental Facility are used substantially concurrently may be in an amount that is less than $5,000,000 (or such lesser amount to finance which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Permitted Acquisition lender providing all or similar investment part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted hereunder whose consummation is not conditioned on the availability ofherein (including with respect to margin, or on obtainingpricing, third party financing (a “Limited Condition Acquisition”maturity and fees), then the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the election option of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only (x) not be required materially more restrictive to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect its Restricted Subsidiaries (as determined by the Borrower in good faith and faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent acting reasonably(i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or effectiveness issuance (as determined by the Borrower in good faith);
(v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term B-1 Loans in right of payment and with respect to security and that are incurred following the Amendment No. 1 Effective Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term B-1 Loans (with the Effective Yield of all Initial Term Loans calculated based on the Effective Yield of the Additional Initial Term Loans) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO RateTerm Benchmark floor) with respect to the Initial Term B-1 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term B-1 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO RateTerm Benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO RateTerm Benchmark floor applicable to such Initial Term B-1 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term B-1 Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B-1 Loans on the date of incurrence of such Incremental Facility (without giving effect to any prepayments of the Initial Term B-1 Loans);
(viii) [reserved];
(ix) [reserved];
(A) any Incremental Facility (x) shall rank pari passu or junior in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) are no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not materially more restrictive a Loan Party or (excluding feesy) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, original issue discount, interest rates, rate floors, spread adjustments, call premiums, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and optional and (B) in any mandatory prepayment and redemption termsof Term Loans as set forth in Section 2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the terms under those in proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the Revolving Credit Facility when taken as a whole andthen-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) after giving effect to the funding of such Incremental Facility and the application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 7.01(a), (f) or (g) with respect to the Borrower only) shall have occurred and be continuing on such date and (C) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or establishment of such Incremental Facility; provided that (I) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility; provided, further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO RateTerm Benchmark Loans of the relevant Class and which end on the last day of such Interest Period.
(b) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably determined required by the Borrower Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (except for covenants the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other provisions item not consistent with this Section 2.22) and (xv) applicable only the Administrative Agent shall be entitled to periods after the latest final maturity receive a certificate of the Revolving Credit Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and
(yB) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Document as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Facility shall be agreed upon by Administrative Agent and the Borrower and in connection with the Lenders providing the Incremental Facility. Upon the effectiveness thereofestablishment of such new Classes or sub-Classes, Schedule 2.2 in each case on terms consistent with this Section 2.22.
(f) This Section 2.22 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 2.18 or 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. The Borrower may (a) add The Company may on one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments occasions, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent, request (i) to during the Administrative Agent at least five Availability Periodfollowing the First Amendment Effective Date, the establishment of Incremental Revolving Commitments and/or (5ii) Business Days prior to following the desired effective date ClosingFirst Amendment Effective Date, the establishment of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesCommitments, collectively, the “Incremental Facilities”) identifying in an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of for all such Incremental Facilities shall Commitments not to exceed the sum of (iA) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained by the Company in reliance on this clause (i)A) plus (B) such amount as would not cause the Secured Leverage Ratio, (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated computed on a Pro Forma Basis based on (but without netting the cash proceeds thereof) as of the last day of the fiscal quarter most recently ended prior to the effective date of the relevant Incremental Facility Agreement in respect of which financial statements have been delivered to the Administrative Agent pursuant to Section 8.05(a5.01(a) or (b) hereof immediately prior ), to such Revolver Increase) shall not exceed exceed, 3.50 to 1.00; provided that if 1.00 plus (C) the proceeds amount of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on optional prepayment of any Term Loan in accordance with Section 2.04(a) and/or the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election amount of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a any permanent reduction in the of any Revolving Credit Commitments thereforin accordance with Section 2.05(a), in each case, not made after the First Amendment Effective Date less the aggregate amount of Incremental Equivalent Debt incurred by the Company in reliance on this clause (C); provided that for purposes of the pro forma calculations required by clauses (A) and, (B) and (C) above, (x) the Incremental Revolving Commitments that would become effective in connection with the proceeds requested Incremental Facility shall be assumed to be fully drawn and (y) the calculation of clause (B) above shall be determined without giving effect to any long-term indebtedness incurrence under clause (excludingA) or (C) above that is incurred substantially simultaneously with amounts under clause (B) above; provided, for further, that, in the avoidance case of doubtIncremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (B) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the definitive agreement to consummate such Limited Condition Acquisition or at the closing thereof. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving LoansCommitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being understood agreed that (Ix) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lxxxxx, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each L/C Issuer.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Credit Commitments and Revolving Credit Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that (i) the Borrower maturity date of any Incremental Revolving Commitments shall be deemed no sooner than, but may be later than, the Maturity Date of the Revolving Credit Facility, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Maturity Date for the Revolving Credit Facility and (iii) the up-front fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Credit Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Term B Commitments and the Term B Loans; provided that (i) the up-front fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Company and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the weighted average life to maturity of any Incremental Term Loans that are not Incremental Term A Loans shall be no shorter than, but may be longer than, the remaining weighted average life to maturity of the then outstanding Term B Loans (determined without giving effect to any prepayments that reduce amortization), (iii) no Incremental Term Maturity Date in respect of Incremental Term Loans that are not Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Term B Loans, (iv) no Incremental Term Maturity Date in respect of Incremental Term A Loans shall be earlier than, but may be later than, the Maturity Date for the Revolving Credit Facility and (v) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to the Term B Loans, then the Applicable Rate then in effect for the Term B Loans shall automatically be increased to eliminate such excess; provided, however, that any interest in the Applicable Rate required pursuant to the foregoing as a result of any interest rate “floor” shall be effected solely through the establishment of or increase to an interest rate “floor”. Notwithstanding the foregoing, the terms and conditions applicable to an Incremental Facility may include additional or different financial or other covenants or other provisions that are agreed between the Company and the Lenders providing such Incremental Facility which are applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement (other than any Incremental Term Facilities having terms identical to the Term B Loans made on the ClosingFirst Amendment Effective Date) that have used capacity identical terms, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, except with respect to the requirement that there not have occurred and be continuing any Default under paragraph (a) or (b) of Article VII or any Default with respect to any Borrower under paragraph (i) or (j) of Article VII (which must be true both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans thereunder to be made on the date of effectiveness thereof), any condition set forth in this clause (i) (may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the agreement to make such Limited Condition Acquisition or on the extent compliant therewith) before capacity under clauses date of effectiveness of such Incremental Term Commitments, (ii) or on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be made and shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (ii) may, at the Company’s option, be modified in a manner determined by the Company and the Incremental Lenders providing such Incremental Term Loan Commitments, as set forth in the applicable Incremental Facility Agreement, such that the only representations and warranties the accuracy of which is a condition to the effectiveness of such Incremental Term Commitments are the Specified Representations, (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto and the use of proceeds thereof (and based on the assumption that borrowings are effected in the full amount of any Incremental Revolving Commitments), and capacity under the Company shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Company for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b); provided that, in the case of Incremental Term Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (iii) may, at the Company’s option, as set forth in the applicable Incremental Facility Agreement, be tested at the signing of the agreement to make such Limited Condition Acquisition or on the date of effectiveness of such Incremental Term Commitments, (iv) the Company shall be deemed make any payments required to be used before capacity made pursuant to Section 2.18 in connection with such Incremental Commitments and the related transactions under clause (i) this Section and (IIv) loans may the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be incurred under clauses (i), (ii) and (iii), and proceeds from requested by the Administrative Agent in connection with any such incurrence under transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be utilized necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section; provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Commitments voting a single transaction Class without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or series Lenders in respect of related transactions Commitments and Loans of the applicable Class) hereunder and shall be bound by first calculating all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the incurrence applicable Class) hereunder and under clause the other Loan Documents and (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility onlyRevolving Commitment, may also rank junior (A) such Incremental Revolving Commitment shall constitute (or, in right of payment and be secured on the event such Incremental Lender already has a junior basis with Revolving Commitment, shall increase) the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding Commitment of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred Lender and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Aggregate Revolving Credit Commitment shall be increased without its consent by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Credit Commitment”. Upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Credit Lender holding such Commitment, and the Applicable Percentage of all the Revolving Credit Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Credit Lender shall assign to each Incremental Revolving Credit Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Credit Lender may shall purchase from each Revolving Credit Lender, at its optionthe principal amount thereof (together with accrued interest), unconditionally such interests in the Revolving Credit Loans and without causeparticipations in Letters of Credit outstanding on such date as shall be necessary in order that, decline after giving effect to participate all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit will be held by all the Revolving Credit Lenders (including such Incremental Revolving Credit Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental FacilityCommitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Credit Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
Appears in 1 contract
Samples: Credit Agreement (NCR Atleos Corp)
Incremental Facilities. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a) add whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more incremental tranches of term loan facilities loans (each an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) one or more additional revolving facilities or an increase in the aggregate amount of the Revolving Credit Commitments by delivering Facility (each such additional facility or increase being an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and Incremental Revolving Facility”; together with any the Incremental Term Facilities, collectively, the each an “Incremental FacilitiesFacility”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of provided that (i) $300,000,000 less at the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, time and after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds effectiveness of any Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilitybelow, no Default or Event of Default shall have occurred and be continuing; provided that if continuing (or, in the proceeds event such Incremental Facility is incurred in connection with a Permitted Acquisition or Investment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the time a commitment to consummate such Permitted Acquisition or Investment is signed and (2) no Default or Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or Investment is consummated), and (ii) the aggregate principal amount of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at Facilities shall not exceed the election greater of (x) (A) $750,000,000 less the Borrower, the foregoing condition aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in this reliance on clause (cx)(A) shall only be required to be satisfied above, plus (B) an unlimited amount if, immediately after giving effect thereto (assuming on the LCT Test Date; provided, however, that on effective date thereof (1) the date funding in full of an Incremental Revolving Facility and (2) the consummation of such Limited Condition Acquisition and proceeds from the funding of such Incremental FacilityFacility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio or the Senior Secured Net Leverage Ratio, no Event of Default under Section 9.01(aas applicable, set forth in this paragraph below), (jI) in the case of an Incremental Advance secured by Liens that rank pari passu with the Liens securing the Term Facility or the Revolving Credit Facility, the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 and (kII) hereof shall have occurred and be continuing;
in the case of an Incremental Advance secured by Liens that rank junior to the Liens securing the Term Facility or the Revolving Credit Facility, the Senior Secured Net Leverage Ratio determined on a pro forma basis would not exceed 2.50:1.00 (d) each the sum of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition amounts specified in this clause (dii) shall only be required (less the aggregate principal amount of any Incremental Facility that has become effective on or prior to be satisfied on the LCT Test Date; provided, however, that on the date of determination) the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.“Available Incremental
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add Upon notice to the Administrative Agent (which shall promptly notify the Lenders) and subject to the terms and conditions of this Section 2.22, at any time after the Second Restatement Effective Date, the Borrower may solicit the existing Lenders or prospective lenders determined by the Borrower to provide (x) increases in the commitments to the Revolving Credit Facility or to an Incremental Revolving Facility (such increases, “Incremental Revolving Commitments”) and/or up to two new tranches of revolving credit facilities (each, an “Incremental Revolving Facility”) and/or (y) incremental commitments consisting of one or more incremental new tranches of term loan facilities loans (each, an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyRevolving Commitments and any Incremental Revolving Facility, the “Incremental Facilities”) identifying in an additional Lender aggregate amount not to exceed the sum of (1) (x) $1,000,000,000 or, if greater, (y) any amount so long as such amount at such time could be incurred without causing the pro forma First Lien Net Leverage Ratio to exceed 2.00:1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of the incurrence of such Indebtedness for which the relevant financial information has been delivered to the Lenders pursuant to Section 5.01(a) or additional Revolving Credit Commitment (b), as applicable, giving effect to the incurrence of such as if it had been made on the first day of the four consecutive fiscal quarter period ending on the last day of such fiscal quarter, and assuming for an existing Lender) and purposes of this calculation that the full committed amount of its any Incremental Revolving Credit Commitment (Facility or additional amount any Incremental Revolving Commitments shall be treated as outstanding for such purpose and cash proceeds of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all any such Incremental Facilities shall not exceed the sum be netted from Indebtedness for purposes of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount calculating compliance with such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total First Lien Net Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered provided that to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if extent the proceeds of any such Incremental Facility are to be used substantially to repay Indebtedness, it shall not limit the Borrower’s ability to give pro forma effect to such repayment of Indebtedness) and giving effect to all other appropriate pro forma adjustments, provided that amounts drawn under the Revolving Credit Facility concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is with the effectiveness of such Incremental Facilities shall not conditioned on be deemed outstanding for purposes of such calculation) plus (2) the availability ofamount of all voluntary prepayment of term loans and permanent reduction of revolving commitments, or on obtainingin each case under the Senior Credit Facilities (other than with proceeds of long-term debt) (such sum, third party financing (a the “Limited Condition AcquisitionAvailable Incremental Amount”), then at all on terms agreed by the election of Borrower and the Borrower, lender(s) providing the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and respective Incremental Facility (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal subject to the actual amount so repaid, repurchased and/or canceled) following clauses of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments thereforthis Section 2.22), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));.
(b) the Any such Incremental Facilities and related guarantees may rank pari passu in right of payment and Facility shall be secured on a pari passu basis by the same Collateral securing the Senior Credit Facilities. Additionally,
(i) in the case of an Incremental Revolving Facility, such Incremental Revolving Facility shall be subject to substantially the same terms and conditions (other than pricing, fees and maturity which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility) as the Revolving Credit Facility, and each Borrowing under the Revolving Credit Facility shall be accompanied by a ratable Borrowing under such Incremental Revolving Facility; provided that the expiration date of such Incremental Revolving Facility may be the same as or later (but not sooner) than the expiration date then applicable to the Revolving Credit Facility; provided further that if the All-In Yield on any Incremental Revolving Facility (as determined by the Administrative Agent as set forth below) exceeds, by more than 50 basis points (the amount by which such excess amount exceeds 50 basis points being herein referred to as the “Yield Differential”), the All-In Yield for the Revolving Credit Facility, then the Applicable Margin then in effect for the Revolving Credit Facility shall automatically be increased by the Yield Differential, effective as of the applicable Incremental Commitments Effective Date.
(ii) in the case of an Incremental Term Facility, Incremental Term Loans to be made under such Incremental Term Facility shall be subject to the terms as determined by the Borrower and the lenders providing such Incremental Term Facility, provided that,
(A) the final stated maturity date for any such Incremental Term Loans may be no sooner than the Latest Maturity Date applicable to the Revolving Total Commitments or any Incremental Term Loan that takes the form of an amortizing term loan A (provided that any such Incremental Term Loan taking the form of an institutional term loan B shall not mature sooner than the later of (x) one year after the Latest Maturity Date applicable to the Revolving Total Commitments and (y) the Latest Maturity Date),
(B) the amortization payments (1) applicable to any such Incremental Term Facility that takes the form of an institutional term loan B shall not exceed 1% per annum, with the Revolving remainder to be paid at maturity and (2) applicable to any other Incremental Term Facility shall not exceed 10% per annum during the first four years or 35% for the first four years in the aggregate, and
(C) the mandatory prepayment provisions, covenants and events of default of such Incremental Term Loans, if not consistent with the terms of the Revolving Credit Facility (or, in the case of mandatory prepayment provisions, consistent with the terms of any then outstanding Incremental Term Facility), shall be reasonably satisfactory to the Administrative Agent (it being understood that covenants and events of default not materially more restrictive to the Borrower, when taken as a whole, than the terms of the Revolving Credit Facility, and any more-restrictive covenants and events of default if (1) Lenders under the Revolving Credit Facility also receive the benefit of such more restrictive terms or (2) any such provisions apply after the expiration date of the Revolving Credit Facility, are in each case reasonably satisfactory to the Administrative Agent); and
(iii) any Incremental Facilities shall not be secured by any lien on any asset of the Borrower or any Guarantor that does not also secure the Revolving Credit Facility, or be guaranteed by any person other than a Loan Party under the Revolving Credit Facility,
(c) Existing Lenders may, but shall not be obligated to without their prior written consent, provide a commitment and/or make any loans pursuant to any Incremental Facility, and nothing contained herein constitutes, or shall be deemed to constitute, a commitment with respect to any Incremental Facility. The use of proceeds of the Incremental Facilities will be as agreed by the Borrower and the lenders providing such Incremental Facility but not prohibited by the Loan Documents.
(d) The notice from the Borrower to the Administrative Agent delivered pursuant to Section 2.22(a) shall set forth the requested amount and proposed terms of the Incremental Facilities, which proposed terms shall not be inconsistent with the requirements of Section 2.22(b). At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days (or such shorter period acceptable to the Administrative Agent, but no less than five Business Days) from the date of delivery of such notice to the Lenders). Incremental Facilities (or any portion thereof) may be provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such bank or other financial institution, an “Incremental Lender”), provided that the Administrative Agent (and, in the case of any Incremental Revolving Commitments in respect of the Revolving Credit Facility, each Issuing Bank) shall have consented (which consent shall not be unreasonably withheld or delayed) to such Lender’s or Incremental Lender’s, as the case may be, providing such Incremental Facilities if such consent would be required under Section 9.04 for an assignment of Loans to such Lender or Incremental Lender, as the case may be. Any Lender not responding within such time period shall be deemed to have declined to provide any portion of such Incremental Facility. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(e) Incremental Facilities shall become effective, and commitments thereunder shall become Commitments (and in the case of any Incremental Term Facility only, may also rank junior Revolving Commitment in right respect of payment and be secured on a junior basis with the Revolving LoansCredit Facility to be provided by an existing Revolving Credit Lender, or may be unsecured;
shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (can “Incremental Facility Amendment”) immediately prior to and after giving effect this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facility, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22.
(f) If any Incremental Facilities are added in accordance with this Section 2.22, the Borrower, in consultation with the Administrative Agent, shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such Incremental Facilities. The Administrative Agent shall promptly notify the Lenders of the final allocation of such Incremental Facilities and the Incremental Commitments Effective Date.
(g) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent, each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to the satisfaction on the Incremental Commitments Effective Date of each of the following conditions:
(i) the Administrative Agent shall have received on or prior to the Incremental Commitments Effective Date each of the following, each dated the Incremental Commitments Effective Date unless otherwise indicated or agreed to by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent: (x) the applicable Incremental Facility Amendment; and (y) customary legal opinions and certified copies of resolutions of the board of directors of each Loan Party approving the execution, delivery and performance of the Incremental Facility Amendment; and
(ii) no Event of Default shall have occurred exists or would exist after giving effect thereto and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the all representations and warranties set forth in Section 6 and in of the other Loan Documents Borrower under this Agreement shall be and remain true and correct in all material respects on the effective date of such Incremental Facility immediately before and after giving effect thereto (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; ), provided that if to the extent the proceeds of the any Incremental Facility are being used substantially concurrently to finance an acquisition or any other permitted investment, if so agreed by the Lenders providing such Incremental Facility, (x) the only representations and warranties the making and accuracy of which will be a Limited Condition Acquisition, then condition to such Incremental Facility or the effectiveness of such Incremental Facility Amendment will be limited to customary specified representations and customary specified acquisition agreement representations reasonably requested by the Administrative Agent and (y) at the election of the Borrower, the foregoing condition in this clause certifications to be made by the Borrower with respect to financial covenant compliance and the absence of an Event of Default may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions, and shall be subject to Section 1.07.
(dh) On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) shall only become a Lender for all purposes of this Agreement and the other Loan Documents and (ii) shall have a commitment under such Incremental Facility which shall become a Commitment hereunder.
(i) Upon each establishment of Incremental Revolving Commitments or an Incremental Revolving Facility pursuant to this Section 2.22, (i) each Revolving Lender immediately prior to the effectiveness of such Incremental Revolving Commitments or Incremental Revolving Facility will automatically and without further act be required deemed to have assigned to each existing Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Incremental Revolving Commitments or Incremental Revolving Facility (each an “Incremental Revolving Commitments Increase Lender”), and each such Incremental Revolving Commitments Increase Lender will automatically and without further act be satisfied on deemed to have assumed, a portion of such Revolving Lender’s participation interests hereunder in outstanding Letters of Credit such that, after giving effect to the LCT Test Date; providedeffectiveness of such Incremental Revolving Commitments or Incremental Revolving Facility and each such deemed assignment and assumption of participation interests, howeverthe percentage of the aggregate outstanding participation interests hereunder in Letters of Credit held by each Revolving Lender (including each such Incremental Revolving Commitments Increase Lender) will equal such Revolving Lender’s Applicable Revolving Percentage and (ii) if, that on the date of the consummation effectiveness of such Limited Condition Acquisition and the funding of the Incremental Revolving Commitments or Incremental Revolving Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term there are any Revolving Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingoutstanding, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding feesBorrower shall take those steps which they deem, original issue discountby mutual agreement, interest rates, rate floors, spread adjustments, call premiums, necessary and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, appropriate to result in each case, as reasonably determined by the Borrower and the Administrative Agent Revolving Lender (except for covenants or other provisions (xincluding each Incremental Revolving Commitments Increase Lender) applicable only to periods after the latest final maturity having a pro-rata share of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance outstanding Revolving Loans in an amount sufficient based on each such that Revolving Lender’s Applicable Revolving Percentage immediately after giving effect to its such Incremental Revolving Loans each Lender Commitments or Incremental Revolving Facility. 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 have outstanding its Percentage not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
(j) The provisions of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.)
Incremental Facilities. (a) The Borrower may (a) add on one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments occasions, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent) , request the establishment of Incremental Commitments; provided that, immediately after giving effect to the Administrative Agent at least five (5) Business Days prior to the desired effective date establishment of such increase (the “Revolver Increase” and together with any each Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount incurrence of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded)thereunder, the Total Leverage Ratio (calculated computed on a Pro Forma Basis based pro forma basis shall not be greater than 2.50 to 1.00. Each such notice shall specify (i) the date on which the financial statements Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent pursuant to Section 8.05(aand (ii) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election amount of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) being requested (it being understood agreed that (IA) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (B) any Person that the Borrower shall proposes to become an Incremental Lender, if such Person is not then a Lender, must be deemed to have used capacity under clause (i) (to an Eligible Assignee and otherwise satisfy the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series requirements of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iiiSection 12.04(b)(i));.
(b) The terms and conditions of any Incremental Commitments and the Incremental Facilities Loans to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Commitments and related guarantees may the Loans; provided that (i) the Incremental Loans shall have the same Guarantees as, and shall rank pari passu in right of payment and be secured security with Liens on a pari passu basis with the Revolving same Collateral as, the Loans, and (ii) if the Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the case extent necessary to eliminate such excess, (iii) the Average Life of any Incremental Term Facility only, may also rank junior in right Loans shall be no shorter than the remaining Average Life of payment and be secured on a junior basis with the Revolving Loans, (iv) the Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the date such Incremental Loan is made, (v) for purposes of mandatory prepayments, the Incremental Loans shall be treated no more favorably than the Loans and (vi) the interest rate margins, original issue discount or may upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Commitment shall be unsecured;determined by the Borrower and the lenders thereunder. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunder, shall be designated as a separate Class of Incremental Commitments and Incremental Loans for all purposes of this Agreement.
(c) immediately prior The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and after giving effect to delivered by the Borrower, each Incremental Lender providing such Incremental Facility, Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that continuing on the date of the consummation of effectiveness thereof, both immediately prior to and immediately after giving effect to such Limited Condition Acquisition Incremental Commitments and the funding making of such Incremental Facility, no Event of Default under Section 9.01(a)Loans thereunder, (jii) or on the date of effectiveness thereof, the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (kA) hereof shall have occurred and be continuing;
(d) each in the case of the representations and warranties set forth qualified as to materiality, in Section 6 all respects and in the other Loan Documents shall be and remain true and correct (B) otherwise, in all material respects respects, in each case on the effective date and as of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)date, except in the case of any such representation and warranty that expressly relates to the extent the same expressly relate to an earlier a prior date, in which case they such representation and warranty shall be so true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such earlier date; provided that if prior date and (iii) the proceeds Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (other than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Incremental Facility are used substantially concurrently Administrative Agent, to finance a Limited Condition Acquisition, then at give effect to the election provisions of the Borrower, the foregoing condition in this clause Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall only be required deemed to be satisfied on the LCT Test Date; provided, however, that on the date a “Lender” (and a Lender in respect of Commitments and Loans of the consummation applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, a Lender (and a Lender in respect of such Limited Condition Acquisition Commitments and the funding Loans of the Incremental Facilityapplicable Class) hereunder and shall be bound by all agreements, only acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans of the Specified Representations shall have to be true applicable Class) hereunder and correct in all material respects (without duplication of materiality qualifiers);under the other Credit Documents.
(e) (i) all Subject to the terms and conditions set forth herein and in the applicable Incremental Term Loans Facility Agreement, each Lender holding an Incremental Commitment of any Class shall have make a maturity date no earlier than loan to the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate Borrower in an amount equal to such Incremental Commitment on the Revolving Credit Termination Date;date specified in such Incremental Facility Agreement.
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for The Administrative Agent shall notify the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined Lenders promptly upon receipt by the Borrower in good faith and the Administrative Agent acting reasonablyof any notice from the Borrower referred to in Section 2.08(a) market terms and conditions (taken as a whole) at of the time effectiveness of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andany Incremental Commitments, in each case, as reasonably determined by case advising the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity Lenders of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness details thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments The Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days prior from time to the desired effective date of such increase (the “Revolver Increase” and together with any time, request Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained Commitments in reliance on this clause (i), (ii) an amount such that, after giving effect thereto, (i) the Aggregate Incremental Amount does not exceed the sum of (A) $200,000,000 and (B) an additional amount such that the First Lien Net Leverage Ratio, determined on an Incremental Pro Forma Effect Basis after giving effect thereto (including the application of proceeds thereof, but without netting the proceeds thereof), does not exceed 3.00 to 1.00 as of the last day of the most recently ended Calculation Period and (ii) the aggregate amount of Incremental Revolving Credit Commitments and Incremental Revolving Loans does not exceed the Incremental Revolver Cap. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such shorter periods as the Administrative Agent shall agree)) and (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.
(b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of the Incremental Loans that (i) except as otherwise agreed by the lenders providing such Incremental Loans to finance a Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Facility Commitment or the incurrence of such Incremental Term Loans, as applicable, (assuming the aggregate Revolving Increase is fully funded), ii) (A) the Total Leverage Ratio of the Borrower as of the last day of the most recently ended Calculation Period (calculated determined on a an Incremental Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver IncreaseBasis) shall not exceed 3.50 to 1.00; provided that if the proceeds applicable ratio for such period set forth in the definition of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Incurrence Total Leverage Ratio and (B) the Total Net Leverage Ratio as of the last day of the most recently ended Calculation Period (determined on an Incremental Pro Forma Basis, including giving effect to the application of proceeds thereof, but without netting the proceeds thereof) shall only be required to be satisfied on the LCT Test Date not exceed 4.00:1.00 and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.25(c).
(c) Each Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal increase to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Total Revolving Credit Commitments therefor), in each case, not made with and shall be on terms identical to the proceeds of any long-term indebtedness existing Revolving Credit Commitments (excluding, for and the avoidance of doubt, Revolving LoansLoans thereunder) (it being understood that (I) that, if required to consummate an Incremental Revolving Credit Commitment, the interest rate margins, rate floors and undrawn fees on the Revolving Facility may be increased). The terms of the Incremental Term Loans shall be determined by the Borrower shall be deemed to have used capacity under clause and the Incremental Term Loan Lenders and set forth in an Additional Credit Extension Amendment; provided that (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) final maturity date of any Incremental Term Loans shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)no earlier than the Tranche B Term Loan Maturity Date, (ii) and (iii)the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may Term Loans will rank pari passu in right of payment and be secured on a pari passu basis with respect to security with the Tranche B Term Loans and the Revolving LoansLoans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party, and in the case of (iv) any Incremental Term Facility only, Loans may also rank junior in right of payment and be secured participate on a junior pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment, (v) if the All-in Yield on such Incremental Term Loans exceeds the All-in Yield for the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans and (vi) to the extent the terms of the Incremental Term Loans are inconsistent with the Revolving Loansterms set forth herein (except as set forth in clause (i) through (v) above), or such terms shall be reasonably satisfactory to the Administrative Agent.
(d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Any Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be unsecured;
(c) necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loans and/or Incremental Term Commitments as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental FacilityRevolving Credit Lender) will equal its Pro Rata Percentage. If, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the consummation of such Limited Condition Acquisition and the funding effectiveness of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and Revolving Credit Commitment be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionRevolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, then at the election of the Borrower, the foregoing condition pro rata borrowing and pro rata payment requirements contained elsewhere in this clause (d) Agreement shall only be required not apply to be satisfied on the LCT Test Date; provided, however, that on transactions effected pursuant to the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);immediately preceding sentence.
(e) (i) all Incremental Term Loans This Section 2.25 shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) supersede any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided provisions in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence 2.17 or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.08 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Walter Investment Management Corp)
Incremental Facilities. The Borrower may (a) add Xxxx xxx at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more incremental tranches of term loan facilities loans (each an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) one or more additional revolving facilities or an increase in the aggregate amount of the Revolving Credit Commitments by delivering Facility (each such additional facility or increase being an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and Incremental Revolving Facility”; together with any the Incremental Term Facilities, collectively, the each an “Incremental FacilitiesFacility”), provided that (i) identifying an additional Lender at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing (or, in the event such Incremental Facility is incurred in connection with a Permitted Acquisition or additional Revolving Credit Commitment for an existing LenderInvestment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the amount time a commitment to consummate such Permitted Acquisition or Investment is signed and (2) no Default or Event of its Revolving Credit Commitment Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or additional amount of its Revolving Credit CommitmentInvestment is consummated); provided, however, that:
and (aii) the aggregate principal amount of all such the Incremental Facilities shall not exceed the greater of (x) (A) $750,000,000(I) the greater of $1,100,000,000 and 15.0% of Total Assets less (II) the aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (x)(A)(I) above, plus (B) an unlimited amount if, immediately after giving effect thereto (assuming on the effective date thereof (1) the funding in full of an Incremental Revolving Facility and (2) the proceeds from the funding of such Incremental Facility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio or the Senior Secured Net Leverage Ratio, as applicable, set forth in this paragraph below), (I) in the case of an Incremental Advance secured by Liens that rank pari passu with the Liens securing the Term Facility or the Revolving Credit Facility, the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 and (II) in the case of an Incremental Advance secured by Liens that rank junior to the Liens securing the Term Facility or the Revolving Credit Facility, the Senior Secured Net Leverage Ratio determined on a pro forma basis would not exceed 2.50:1.00 (the sum of the amounts specified in this clause (iii) $300,000,000 (less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently that has become effective on or prior to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a date of determination) the “Limited Condition AcquisitionAvailable Incremental Amount”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date ; it being acknowledged and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingagreed that, for the avoidance of doubt, the 2018 Term Loan B Facility (as defined in Amendment No. 2), the 2018 Term A Facility Upsize (as defined in Amendment No. 2), the 2018 Revolving LoansFacility Upsize (as defined in Amendment No. 2) and, the Revolving Facility Upsize (it being understood that as defined in Amendment No. 3) and the Revolving Facility Upsize (Ias defined in Amendment No. 5) are incurred or established, as applicable, under the incremental ratio prong set forth in clause (B)(I) above, plus (C) the Borrower shall be deemed to have used capacity under clause aggregate amount of all voluntary prepayments of (i1) Term Facility (or other term Debt secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder), (2) any Refinancing Term Facility (to the extent compliant therewithpreviously applied to the prepayment of Term Facility hereunder), (3) before capacity under all repurchases of any of the foregoing Debt in clauses (ii1) and (2) (in each case, in an amount equal to the cash amount expended) and (4) the Revolving Credit Facility or Refinancing Revolving Facility (iiior other revolving Debt secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder) (and accompanied by a reduction of Revolving Credit Commitments pursuant to Section 2.20(a) in the case of a prepayment of Revolving Credit Facility or Refinancing Revolving Facility or a reduction in the revolving commitments in the case of a prepayment of such other revolving indebtedness) made prior to such time, in each case, except to the extent funded with the proceeds of long-term indebtedness (other than revolving indebtedness), and capacity under clause (iii) . Each Incremental Facility shall be deemed to in an aggregate principal amount that is not less than $50,000,000 unless approved by the Administrative Agent (provided that such amount may be used before capacity less than $50,000,000 if such amount represents all remaining availability under clause the limit set forth in the preceding sentence).
(b) (i) The maturity date of any Incremental Revolving Facility (the “Incremental Revolving Facility Maturity Date”) shall not be earlier than the commitment termination date of the Revolving Credit Facility nor have a weighted average life which is shorter than the then remaining weighted average life of the Revolving Credit Facility, ; provided, that this clause (b)(i) shall not apply to any Incremental Revolving Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of the greater of $300,000,000 and 4.0% of Total Assets (II) loans may be incurred under clauses (ithe “Inside Maturity Basket”), (ii) the terms and conditions applicable to any Incremental Revolving Facility (iii)other than with respect to maturity, and proceeds from any such incurrence under clauses which shall be governed by the preceding clause (i)) shall be, if not substantially consistent with the terms of the existing Revolving Credit Facility (iiother than interest rate margins and commitment/facility fees), shall be reasonably satisfactory to the Administrative Agent (it being understood that, to be extent that any financial maintenance covenant is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Credit Facility or (2) only applicable after the latest maturity of the Revolving Credit Facility) and (iii) may the Applicable Margin and commitment/facility fees relating to any Incremental Revolving Facility shall be utilized as agreed by Xxxx and the Lenders providing such Incremental Revolving Facility;.
(c) (i) The maturity date of any Incremental Term Facility (the “Incremental Term Facility Maturity Date”) shall not be earlier than the then Latest Maturity Date and the weighted average life to maturity of any Incremental Term Facility shall be no shorter than the market terms for facilities of equivalent tenor and similar nature at the time of such incurrence for a term facility, as determined in a single transaction or series good faith by Xxxx and the Administrative Agent; provided, that this clause (c)(i) shall not apply to any Incremental Term Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of related transactions by first calculating the incurrence under clause Inside Maturity Basket, (ii) and then calculating the incurrence under clause (iii));
(b) the any Incremental Facilities and related guarantees may Term Facility will rank pari passu with the Revolving Credit Facility and the Term Facility in right of payment and security or, at the option of Xxxx, junior in right of security with the Revolving Credit Facility and the Term Facility, subject to the Intercreditor Agreement or intercreditor arrangements reasonably satisfactory to the Administrative Agent), (iii) subject to clause (i) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by Xxxx and the lenders thereunder, (iv) any fees payable in connection with any Incremental Facility shall be determined by Xxxx and the arrangers and/or lenders providing such Incremental Facility, (v) any Incremental Term Facility shall provide for mandatory prepayment events which shall be no more favorable to the lenders under such Incremental Term Facility than market terms for prepayment events for similar term loan facilities at the time of incurrence, as determined in good faith by Xxxx and the Administrative Agent, (vi) the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a LIBOR or Base Rate floor but excluding any structuring, commitment and arranger fees or other similar fees) applicable to any Incremental Facility will be determined by Xxxx and the lenders providing such Incremental Facility; provided that in the case of any Incremental Term Facility in the form of a “term loan B facility” that is secured on a pari passu basis with the Revolving Loans2018 New Term B Facility and incurred on or prior to the first anniversary of the Amendment No. 2 Effective Date, and in the case of except for any such Incremental Term Facility onlythat has a maturity date that is at least two years after the Maturity Date of the 2018 New Term B Facility, may also rank junior in right of payment and be secured the “effective yield” on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to loans under such Incremental FacilityTerm Facility (which shall be deemed to take account of interest rate benchmark floors, no Event recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of Default shall have occurred (A) the weighted average life of such loans and be continuing; (B) four years) payable to all lenders providing such loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all lenders providing such loans) may exceed the then “effective yield” on the loans under the 2018 New Term B Facility (determined on the same basis as provided that in the preceding parenthetical), if the proceeds of “effective yield” on the Incremental loans under the 2018 New Term B Facility are used substantially concurrently (determined on the same basis as provided in the second preceding parenthetical) is increased, to finance a Limited Condition Acquisitionthe extent necessary, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied not less than 0.50% lower than the “effective yield” on the LCT Test Date; providedsuch loans and (vii) except as otherwise required or permitted in clauses (i) through (vi) above, however, that on the date of the consummation of such Limited Condition Acquisition and the funding all other terms of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each if not substantially consistent with the terms of the representations and warranties set forth in Section 6 and in the other Loan Documents existing Revolving Credit Facility, shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) other than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) terms that are only applicable only to periods after the latest final maturity Latest Maturity Date and (y) terms and conditions which do not apply to any then-existing Facility (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Credit Facility or (y2) as are incorporated into only applicable after the latest maturity of the Revolving Credit Facility).
(d) Each Incremental Facility may be provided by any existing Lender or by any Eligible Assignee selected by Xxxx (any such other financial institution or fund being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Incremental Facility if such consent would be required under Section 9.07 for an assignment of Advances to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement for pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the benefit other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of all existing Lenders (which any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be accomplished without further amendment voting requirements)necessary or appropriate, in the reasonable opinion of the Administrative Agent and Xxxx, to effect the provisions of this Section 2.18. The effectiveness of any Incremental Amendment shall be subject (except as specifically set forth in this Section 2.18) to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.02 (it being understood that (i) all references to the date of making of an extension of credit or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental Amendment, and (ii) in the case of an Incremental Facility being used to finance a Permitted Acquisition or a permitted Investment hereunder, the representations and warranties may be limited to customary “SunGard” provisions and the Lenders and Additional Lenders providing the applicable Incremental Facility may waive the making of any representation or warranty). The effective date Borrowers will use the proceeds of the Incremental Facility Facilities for any purpose not prohibited by this Agreement. No Lender shall be agreed upon by the Borrower obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders providing hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph.
(e) To the extent not already provided, the Administrative Agent shall provide notice to all of the Lenders of the proposed Incremental Amendment by not later than the same date established in the Incremental FacilityAmendment (if any) for applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Upon Notwithstanding any other provision of any Loan Document, the effectiveness thereof, Schedule 2.2 shall Loan Documents may be deemed amended to reflect any Revolver Increase by the Administrative Agent and the new Lender (orLoan Parties, if applicablenecessary, existing Lenderto provide for terms applicable to each Incremental Facilities.
(g) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, solely during the Restricted Period no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall or Incremental Equivalent Debt may be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityestablished that is secured by Liens that rank pari passu with the Liens securing the Obligations under the Loan Documents.
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Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to a Tranche of Term Loans (the “Supplemental Term Loan Commitments” and and, together with the loans borrowed thereunder Incremental Term Loan Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinance other Indebtedness), an amount that could then be Incurred in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan under the applicable Tranche of Term Loans.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrower and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu basis by the same Collateral securing the Initial Term Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the extent compliant therewith) before capacity under clauses (ii) ABL/Term Loan Intercreditor Agreement or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ian Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment and with or (at the Borrower’s option) junior to the Initial Term Loans, (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Initial Term Loans and (D) so long as any Initial Term Loans are outstanding, no Incremental Commitment Amendment may provide for any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Revolving Loans, and in the case of any Incremental Initial Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
Loans (c) immediately prior to and after giving effect to such Incremental Facility, any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only Lender will be required to be satisfied on provide any such Incremental Commitment unless it so agrees; (iii) the LCT Test Date; provided, however, that on the maturity date of the consummation of such Limited Condition Acquisition and the funding weighted average life to maturity of such Incremental FacilityTerm Loan Commitments shall be no earlier than or shorter than, no Event of Default under Section 9.01(a)as the case may be, (j) the Initial Term Loan Maturity Date or (k) hereof shall have occurred and be continuing;
(d) each the remaining weighted average life to maturity of the representations and warranties set forth in Section 6 and in the Initial Term Loans, as applicable (other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to than an earlier datematurity date and/or shorter weighted average life to maturity for customary bridge financings, in which case they shall which, subject to customary conditions, would either be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be automatically converted into or required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a exchanged for permanent financing which does not provide for an earlier maturity date no earlier than the Revolving Credit Termination Initial Term Loan Maturity Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant or a shorter weighted average life to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) maturity than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only remaining weighted average life to periods after the latest final maturity of the Revolving Credit Facility or Initial Term Loans, as applicable); (yiv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.interest rate margins
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Incremental Facilities. The (i) Borrower may or PR Borrower may, by written notice to Administrative Agent, request the addition of additional term loans to be made hereunder (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “"Incremental Term Loans”") or (b) increase in an aggregate principal amount not to exceed the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)Additional Secured Indebtedness Amount; provided, however, that:
that both (ax) at the aggregate amount time of all any such request and (y) after giving effect to any such Incremental Facilities Term Loans, no Default shall not exceed have occurred and be continuing and Parent shall be in compliance with each Financial Maintenance Covenant (calculated, in the sum case of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iy), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered pro forma basis to the Administrative Agent pursuant give effect to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) borrowing of Incremental Term Loans, ). The Incremental Equivalent Debt and Revolving Term Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured of security with the other Loans, (ii) have an average weighted life equal to or longer than the Term Loans and mature on a pari passu basis date no earlier than the Term Maturity Date, (iii) have such pricing as may be agreed upon by Borrower or PR Borrower, as the case may be, and the Persons providing such Incremental Term Loans; provided, that the initial yield with respect to the Revolving Incremental Term Loans (as reasonably determined by Administrative Agent to be equal to the sum of (x) the LIBOR loan margins on the Incremental Term Loans and (y) if the Incremental Term Loans are initially made at a discount or the lenders making the same receive a fee from Parent, Borrower, PR Borrower or any other Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as "OID"), the amount of OID divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) may be no more than 0.25% per annum greater than the Applicable Margin with respect to the LIBOR Term Loans at the time the Incremental Term Facility Amendment (as defined below) becomes effective pursuant to its terms (it being understood that the pricing of the Term Loans will be increased and/or additional fees will be paid to the Term Lenders to the extent necessary to satisfy such requirement), and (iv) otherwise be treated hereunder substantially the same as (and in any event no more favorably than) the case Term Loans (including with respect to the voluntary and mandatory prepayment provisions); provided, that the terms and provisions applicable to the Incremental Term Loans may provide for financial or other covenants different or in addition to those applicable to the Term Loans only to the extent that such terms and provisions are applicable only during periods after the Term Maturity Date. Each Person's commitment to provide an Incremental Term Loan shall become a Commitment under this Agreement and the facility for the Incremental Term Loans shall be implemented hereunder pursuant to an amendment to this Agreement (an "Incremental Term Facility Amendment") executed by each of Parent, Borrower, PR Borrower, each other Obligor, each Lender agreeing to provide an Incremental Term Commitment and Administrative Agent, which Incremental Term Facility Amendment will not require the consent of any other Lender. The effectiveness of any Incremental Term Facility onlyAmendment shall (in addition to any other conditions specified therein) be subject to the satisfaction (or waiver by the applicable Incremental Term Loan Lenders) on the date thereof and, may also rank junior if different, on the date on which the Incremental Term Loans are made, of each of the conditions set forth in right Section 7.01 and any other conditions to effectiveness reasonably requested by Administrative Agent.
(ii) Borrower or PR Borrower may, by written notice to Administrative Agent, request that the total Tranche A Revolving Credit Commitments be increased by an aggregate amount not to exceed the Additional Secured Indebtedness Amount at such time. Upon the receipt of payment such request by Administrative Agent, Administrative Agent shall deliver a copy thereof to each Tranche A Revolving Credit Lender. Such notice shall set forth the amount of the requested increase and the date on which such increase is requested to become effective, which must be secured on a junior basis with or prior to the Revolving LoansCredit Maturity Date, and shall offer each Tranche A Revolving Credit Lender the opportunity to increase its Tranche A Revolving Credit Commitment by its applicable pro rata percentage of the proposed increased amount. Each Tranche A Revolving Credit Lender shall, by notice to Borrower or PR Borrower, as the case may be, and Administrative Agent given not more than 10 days after the date of Administrative Agent's notice, either agree to increase its Tranche A Revolving Credit Commitment (any such increase being an "Incremental Revolving Commitment") by all or a portion of the offered amount (each Tranche A Revolving Credit Lender so agreeing being an "Increasing Revolving Lender") or decline to increase its Tranche A Revolving Credit Commitment (and any Tranche A Revolving Credit Lender that does not deliver such a notice within such period of 10 days shall be unsecured;
deemed to have declined to increase its Tranche A Revolving Credit Commitment) (c) immediately prior each Tranche A Revolving Credit Lender so declining or being deemed to and have declined being a "Non-Increasing Revolving Lender"). In the event that, on the 10th day after giving effect to such Incremental Facility, no Event of Default Administrative Agent shall have occurred and be continuing; provided that if delivered a notice pursuant to the proceeds second sentence of this paragraph, the Incremental Facility are used substantially concurrently Increasing Revolving Lenders shall have agreed pursuant to finance a Limited Condition Acquisition, then at the election of preceding sentence to increase their Tranche A Revolving Credit Commitments by an aggregate amount less than the increase requested by Borrower or PR Borrower, Borrower or PR Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an "Augmenting Revolving Lender"), which may include any Lender, to extend Tranche A Revolving Credit Commitments or increase their existing Tranche A Revolving Credit Commitments in an aggregate amount equal to the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Dateunsubscribed amount; provided, however, that each Augmenting Revolving Lender shall be subject to the prior written approval of Administrative Agent, the Swing Lender and the Issuing Lender (which approvals shall not be unreasonably withheld or delayed), and Borrower or PR Borrower, as the case may be. Any increases in Tranche A Revolving Credit Commitments shall be implemented hereunder pursuant to an amendment to this Agreement (an "Incremental Revolving Amendment") executed by each of Parent, Borrower, PR Borrower, each other Obligor, each Increasing Revolving Lender (if any), each Augmenting Revolving Lender (if any) and Administrative Agent, which amendment will not require the consent of any other Lender. Any such increase may be made in an amount that is less than the increase requested by Borrower or PR Borrower, as the case may be, if Borrower or PR Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Revolving Lenders. Each of the parties hereto hereby agrees that Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.01(d)(ii), the outstanding Tranche A Revolving Credit Loans (if any) are held by the Tranche A Revolving Credit Lenders in accordance with their new applicable pro rata percentages. This shall be accomplished at the discretion of Administrative Agent, following consultation with the Borrower or PR Borrower, as the case may be by requiring the outstanding Tranche A Revolving Credit Loans to be prepaid with the proceeds of a new Tranche A Revolving Credit Loan. Any prepayment or assignment described in the preceding sentence shall be subject to Section 5.05, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Tranche A Revolving Credit Commitments (or separate commitment) shall become effective under this Section 2.01(d) unless, (i) on the date of the consummation such increase (or provision of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(aa separate commitment), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties conditions set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) paragraph (i) all Incremental Term Loans of Section 7.01 shall be satisfied (or waived by the applicable Increasing Revolving Lenders and Augmenting Revolving Lenders) and Administrative Agent shall have received a maturity certificate to that effect dated such date no earlier than the Revolving Credit Termination Date and executed by a Senior Officer, and (ii) all Revolving Increases if requested, Administrative Agent shall terminate have received legal opinions and board resolutions consistent with those delivered on the Revolving Credit Termination Date;
(fClosing Date under Sections 7.02(a) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds7.02(c)(ii)(B);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
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Samples: Credit Agreement (Centennial Communications Corp /De)
Incremental Facilities. The Borrower may (a) add The Borrower and any one or more incremental term loan facilities Lenders (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”including New Lenders) may from time to time agree that such Lenders shall make, obtain or (b) increase the aggregate amount of the their Revolving Credit Commitments Commitments, as applicable, by executing and delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative AgentAgents an Increased Facility Activation Notice specifying (i) to the Administrative Agent at least five (5) Business Days prior to the desired effective date amount of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental the applicable Increased Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00Closing Date; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to any such Incremental Facility, increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause continuing and (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(dii) each of the representations and warranties set forth made by any Loan Party in Section 6 and in or pursuant to the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already or, if such representations and warranties are qualified by materiality, otherwise in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date; provided that if ). Notwithstanding the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionforegoing, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained shall have a maturity date no earlier than the Revolving Credit Termination Date not exceed $100,000,000 and (ii) all Revolving Increases shall terminate on without the Revolving Credit Termination Date;
consent of the Administrative Agent, (fx) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in each increase effected pursuant to this Section 2.16, any Incremental Term Facility paragraph shall be on terms in an amount equal to $5,000,000 (or a whole multiple of $5,000,000 in excess thereof) and pursuant to documentation to (y) no more than five Increased Facility Closing Dates may be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined selected by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements))Closing Date. The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no No Lender shall have any obligation to participate in any Incremental Facility increase described in this Section 2.19 unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and no the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), elects to become a “Lender’s Revolving Credit Commitment ” under this Agreement in connection with any transaction described in this Section 2.19 shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant increased without its consent thereto, and Revolving Commitments from each Lender participating in the relevant increase in amounts determined by reference to the amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Term Benchmark tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark tranche requested to be so borrowed or effected had been proportionately increased. The Term Benchmark applicable to any Term Benchmark Loan borrowed pursuant to the preceding sentence shall equal the Term Benchmark then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the increased or new Revolving Commitments evidenced thereby. Any such deemed amendment may at its option, unconditionally be effected in writing by the Administrative Agent with the consent of the Borrower (not to be unreasonably withheld) and without cause, decline furnished to participate in any Incremental Facilitythe other parties hereto.
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Incremental Facilities. The Borrower may
(a) add Borrower may, from time to time after the Funding Date, upon notice by Borrower to Agent and the Person appointed by Borrower to arrange an incremental facility (such Person (other than Borrower or an Affiliate of Borrower) appointed by Borrower after consultation with Required Lenders), the “Incremental Arranger”) specifying the proposed amount thereof, request (i) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in clause (c) below with respect to amortization)) (each, a “Term Commitment Increase”) and (ii) the addition of one or more incremental new term loan facilities on the same terms and conditions hereof (an except for OID, interest, Yield Maintenance Premium, and Prepayment Premium, which may vary), in each case (each, a “Incremental New Term Facility” ”; and any advance made by a Lender thereunder, a “New Term Loan”; and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (commitments thereof, the “Revolver IncreaseNew Term Loan Commitment” and together with any Incremental the Term Facilities, collectivelyCommitment Increase, the “Incremental FacilitiesNew Loan Commitments”) identifying by an additional aggregate amount not to exceed $25,000,000.
(b) Borrower shall offer each Lender the right to participate in any New Loan Commitment and each Lender may elect or decline, in its sole discretion, to participate in such increase or new facility. If Xxxxxxx have not committed to participate within seven (7) days of receipt of the request to do so, Borrower may also invite other lenders to become Lenders pursuant to a Joinder Agreement to this Agreement.
(c) If (i) a Term Loan Tranche is increased in accordance with this Section 2.02 or additional Revolving Credit Commitment for an existing Lender(ii) a New Term Facility is added in accordance with this Section 2.02, the Incremental Arranger and Borrower shall determine the effective date (the “Increase Effective Date”) and the amount final allocation of its Revolving Credit Commitment such increase, New Term Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders (with a copy to Agent) of the final allocation of such increase or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) New Term Facility and the aggregate amount of all such Incremental Facilities shall not exceed the sum of Increase Effective Date. In connection with (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred any increase in a Term Loan Tranche or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on any addition of a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental New Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)Facility, in each case, pursuant to this Section 2.02, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by Borrower, Agent, and the Incremental Arranger (and the Lenders hereby authorize Agent and any such Incremental Arranger to execute and deliver any such documentation)) in order to establish the New Term Facility or to effectuate the increases to the Term Loan Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein solely to the extent such technical changes are not adverse to the rights of any Lender. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, any applicable amortization schedule for New Term Loans shall be amended in a writing (which may be executed and delivered by Borrower, Agent, and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to increase the then- remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the proceeds amounts in effect immediately prior to the Increase Effective Date.
(d) With respect to any Term Commitment Increase or addition of any long-term indebtedness (excludingNew Term Facility pursuant to this Section 2.02, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) no Event of Default shall exist or result from giving effect to such increase; (ii)) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans and the same terms and conditions applicable to the extent compliant therewith) before capacity under clauses outstanding Term Loan Tranche being increased shall apply and (ii) or (iii)in the case of any New Term Facility, and capacity under clause (iii) such New Term Facility shall be deemed to be used before capacity under clause have a final maturity no earlier than the then maturity date of any Term Loan Tranche.
(i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may Any New Loan Commitments shall rank pari passu in right of payment with the other Term Loan Facilities and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental other Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent Facilities over the same expressly relate to an earlier date(or less) Collateral that secures the Term Loan, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingNew Loan Commitments, as applicable, shall, for the avoidance purposes of doubt, customary amortization payments, excess cash flow prepayments, be treated substantially the same or no more favorably than the Term Facility, and prepayments (iii) with debtrespect to any New Term Facility, asset sale and casualty insurance proceeds);
(g) except as otherwise provided the All-in this Section 2.16, any Incremental Yield payable by Borrower applicable to such New Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing such New Term Facility.
(f) If the Incremental Facility. Upon Arranger is not Agent, the effectiveness thereof, Schedule 2.2 actions authorized to be taken by the Incremental Arranger herein shall be deemed amended done in consultation with Agent and, with respect to reflect the preparation of any Revolver Increase documentation necessary or appropriate to carry out the provisions of this Section 2.02 (including amendments to this Agreement and the new Lender other Loan Documents), any comments to such documentation reasonably requested by Agent (or, if applicable, existing Lendereither on its own behalf or at the direction of Required Lenders) shall advance Revolving be reflected therein.
(g) No Lender shall be required to participate in, provide commitments under or make Loans in an amount sufficient such that after giving effect to connection with any New Loan Commitments without its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything written consent, and nothing herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent theretoconstrued as a commitment by any Lender to provide or arrange any New Loan Commitments.
(h) Agent shall be entitled to rely on direction from the Required Lenders (and refrain from acting until received) notifying Agent that any Term Commitment Increase or addition of New Term Facility complies with the provisions of this Section 2.02 and that all documents to be executed by, and each Lender may at its optionother actions to be taken by, unconditionally Agent in accordance herewith are authorized and without cause, decline to participate in any Incremental Facilitypermitted by this Agreement.
Appears in 1 contract
Samples: Financing Agreement
Incremental Facilities. (a) The Borrower may (a) add one at any time or more incremental term loan facilities (an “Incremental Term Facility” and from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments Effective Date, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) notice to the Administrative Agent at least five (5whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) Business Days prior to the desired effective date one or more additional tranches of such increase term advances (the “Revolver IncreaseIncremental Term Advances”) to be used as General Working Capital Credit Increases or Ontelaunee Credit Increases, (ii) one or more tranches of working capital commitments (each, an “Incremental Working Capital Facility”) to be used as General Working Capital Credit Increases or Ontelaunee Credit Increases or (iii) one or more tranches of funded letter of credit commitments (each a “Synthetic L/C Facility” and and, together with any Incremental Term FacilitiesAdvances and Incremental Working Capital Facility, collectively, the referred to herein as a “Incremental FacilitiesCredit Increase”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedprovided that (A) upon the effectiveness of any Incremental Amendment referred to below, howeverno Default or Event of Default shall exist and at the time that any such Incremental Term Advance is made (and after giving effect thereto) no Default or Event of Default shall exist, that:
(aB) the Borrower may make a maximum of four requests for a Credit Increase, and (C) the Borrower shall have received a Ratings Reaffirmation. Each Credit Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all such Incremental (x) General Working Capital Credit Increases shall not exceed $100,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(v), (y) Ontelaunee Credit Increases shall not exceed $165,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(iv) and (z) Synthetic L/C Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent 650,000,000 when taken together with any other Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”5.02(b)(iii), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));.
(b) the Any Incremental Facilities Term Advances and related guarantees may any Synthetic L/C Facility (i) shall rank pari passu in right of payment and be secured on a pari passu basis of security with the Revolving Loansother Advances, (ii) shall not mature earlier than the Maturity Date and shall have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Advances, (iii) shall be treated substantially the same as the Advances (in the case of any the Incremental Term Advances, including with respect to mandatory and voluntary prepayments), and (iii) if a Yield Differential exists, the LSP Gen Finance Second Lien Credit Agreement Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such Yield Differential. The Incremental Working Capital Facility only, may also (i) shall rank junior pari passu in right of payment and be secured on a junior basis of security with the Revolving LoansFacility, or may and (ii) if a Yield Differential exists, the Applicable Margin then in effect for Eurodollar Rate Advances shall be unsecured;increased by the amount of such Yield Differential.
(c) immediately prior Each notice from the Borrower pursuant to this Section 2.16 shall set forth the requested amount and after giving effect to proposed use and terms of the relevant Credit Increases. Credit Increases may be provided by any existing Lender or by any other bank or financial institution (any such Incremental Facility, no Event of Default shall have occurred and be continuingbank or other financial institution being called an “Additional Lender”); provided that (i) the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lenders or Additional Lender’s making such Incremental Term Advances or providing such Incremental Working Capital Facility or Synthetic L/C Facility, if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only such consent would be required in connection with an assignment of Advances or Commitments, as applicable to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition Lender or Additional Lender and the funding of such Incremental (ii) with respect to any Synthetic L/C Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof an Additional Lender shall have occurred and be continuing;agreed to act as issuing bank therefor.
(d) Commitments in respect of Credit Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of the representations any other Lenders, effect such amendments to this Agreement and warranties set forth in Section 6 and in the other Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.16. The effectiveness of any Incremental Amendment shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except subject to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that satisfaction on the date thereof of each of the consummation of conditions set forth in Sections 3.01(n), (o) and (p) and such Limited Condition Acquisition and other conditions as the funding of the Incremental Facility, only the Specified Representations parties thereto shall have to be true and correct in all material respects (without duplication of materiality qualifiers);agree.
(e) The Borrower will use the proceeds of (i) all Incremental Term Loans shall have a maturity date no earlier than any General Working Capital Credit Increase solely as contemplated by the Revolving Credit Termination Date definition thereof and (ii) all Revolving Increases shall terminate on any Ontelaunee Credit Increase solely as contemplated by the Revolving Credit Termination Date;definition thereof.
(f) No Lender shall be obligated to provide any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingCredit Increase, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);unless it so agrees.
(g) except as otherwise provided This Section 2.16 shall supersede any provision in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence 2.13 or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein 9.01 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Incremental Facilities. The Borrower (i) For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may be amended (aor amended and restated) add at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more incremental additional separate tranches of term loan facilities loans (each such increase to the Revolving Commitments and/or establishment of a new tranche term loans being referred to herein as an “Incremental Term Facility,” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date all of such increase (the “Revolver Increase” increases and together with any Incremental Term Facilities, collectively, establishments being referred to collectively as the “Incremental Facilities”) identifying to be made to the Borrower by an additional Lender agreement in writing entered into by the Borrower, the Administrative Agent and each Person (or additional Revolving Credit Commitment for an existing including any Lender) that shall agree to provide any such increase to the Revolving Commitments or such separate tranches of term loans (but without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the amount of its time such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)and/or term loan set forth in such agreement; provided, however, that:
: (aA) without the aggregate amount written consent of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less Required Lenders, the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained increases in reliance on the Revolving Commitments and/or separate term loans effected after the Closing Date pursuant to this clause Section 11.01(b) shall not exceed $250,000,000; (i), (iiB) an amount such the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, after upon giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated effect on a Pro Forma Basis based on to the incurrence of any such Incremental Facility and the concurrent retirement of any other Indebtedness of a Consolidated Party, the Loan Parties would be in compliance with the financial statements delivered to covenants set forth the in Section 8.11 as of the most recent fiscal quarter end for which the Administrative Agent pursuant has received the Required Financial Information; (C) no Default or Event of Default shall exist at the time of the amendment giving effect to Section 8.05(aany such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (D) no Lender shall be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such increase. The terms applicable to any additional Revolving Commitments or term loans, as applicable, shall be the same as those applicable to the initial Revolving Commitments and Tranche B Term Loan, as applicable, (b) hereof immediately prior after giving effect to any amendment in connection with the establishment of such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition additional Revolving Commitments or similar investment permitted hereunder whose consummation is not conditioned on the availability ofterm loans, or on obtaining, third party financing (a “Limited Condition Acquisition”as applicable), then at the election of the Borrowerexcept, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)terms loans, in each caserespect of pricing, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), amortization and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Datematurity; provided, however, that (A) each such Incremental Facility structured as a separate term loan tranche may be provided the right to ratable (with the Tranche B Term Loan and each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date of the Tranche B Term Loan, (C) the final maturity date of any Incremental Facility structured as a separate term loan tranche shall not occur prior to the Maturity Date of the Tranche B Term Loan or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche and (D) with respect to any Incremental Facility structured as a separate term loan tranche and that is funded to the Borrower on or before the date of 18 months after the consummation of such Limited Condition Acquisition and Closing Date, the funding Applicable Yield of such Incremental Facility, no Event Facility may not exceed the Applicable Yield of Default under Section 9.01(athe Tranche B Term Loan or any other then outstanding Incremental Facility structured as a separate term loan tranche by more than 0.25% (it being understood that the Applicable Rate for the Tranche B Term Loan or any such Incremental Facility may be increased and/or additional fees may be paid to the Lenders holding the Tranche B Term Loan and/or any such Incremental Facility to the extent necessary to satisfy such requirement), (j) or (k) hereof shall have occurred and be continuing;.
(dii) each Any such amendment (or amendment and restatement) effected pursuant to Section 11.01(b)(i) shall amend the provisions of the representations this Agreement and warranties set forth in Section 6 and in the other Loan Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 11.01(b)) and to effect such other changes (including changes to the provisions of Section 11.01(a), Section 2.05 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall be and remain true and correct deem necessary or advisable in all material respects on connection with the effective date establishment of any such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test DateFacility; provided, however, that on the date of the consummation of no such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either agreement shall: (A) reflect effect any change described in any of clauses (as determined A), (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in clauses (A), (B), (C), (F) and (G) of Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the Borrower changes described in good faith clauses (D) and the Administrative Agent acting reasonably(E) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Commitments then existing, if the Lenders holding Revolving Commitments are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiumsso benefited, and optional of Lenders holding a majority in interest of each separate tranche of term loans then existing and mandatory prepayment not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, Involuntary Dispositions, Debt Issuances, Equity Issuances or with the proceeds of excess cash flow will be deemed to violate this clause). The loans, commitments and redemption termsborrowings of any Incremental Facility established pursuant to this Section 11.01(b) than shall constitute Loans, Commitments and Borrowings under, and shall be entitled to all the terms under those benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty set forth in Article IV hereunder and the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined security interests and Liens created by the Collateral Documents, and the Borrower and shall take any actions reasonably required by the Administrative Agent (except for covenants or other provisions (x) applicable only to periods ensure and/or demonstrate that the requirements of this sentence are satisfied after the latest final maturity establishment of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities At any time during the period from and after the Closing Date through, but excluding, the date that is the 4 year anniversary of the Closing Date, Borrowers may request that (an “Incremental Term Facility” but subject to the Lender's approval and subject to the loans borrowed thereunder “Incremental Term Loans”) or conditions set forth in clause (b) increase below) the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Credit Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an "Increase"). Lender shall increase its Revolver Commitments (it being understood that Lender has no obligation to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably Borrowers and acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities . Any Increase shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (this Section 2.14 on more than 2 occasions in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingaggregate for all such Increases. Additionally, for the avoidance of doubt, Revolving Loans) (it being is understood and agreed that (I) in no event shall the Borrower shall be deemed to have used capacity under clause (i) (aggregate amount of the Increases to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));Revolver Commitments exceed $40,000,000.
(b) Each of the Incremental Facilities following shall be conditions precedent to any Increase of the Revolver Commitments and related guarantees may rank pari passu the Maximum Revolver Amount in right connection therewith:
(i) each of payment the conditions precedent set forth in Section 3.2 are satisfied,
(ii) in connection with any Increase, the Loan Parties and be secured their Subsidiaries will not own or acquire any Margin Stock,
(iii) Borrowers have delivered to Lender updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pari passu pro forma basis with Section 7 for the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured twelve months (on a junior basis month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(iv) Borrowers shall have reached agreement with Lender agreeing to the increased Revolver Commitments with respect to the interest margins applicable to Revolving Loans, or Loans to be made pursuant to the increased Revolver Commitments (which interest margins may be unsecured;with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the "Increase Date")) and shall have communicated the amount of such interest margins to Lender.
(c) immediately prior to and after giving effect to such Incremental FacilityUnless otherwise specifically provided herein, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition all references in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition Agreement and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the any other Loan Documents Document to Revolving Loans shall be and remain true and correct in all material respects on deemed, unless the effective date of such Incremental Facility (where not already qualified by materialitycontext otherwise requires, otherwise in all respects), except to include Revolving Loans made pursuant to the extent the same expressly relate increased Revolver Commitments and Maximum Revolver Amount pursuant to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility2.14.
Appears in 1 contract
Samples: Credit Agreement (Northwest Pipe Co)
Incremental Facilities. The Borrower may (a) add The Borrower may, on no more than five occasions, by written notice to the Administrative Agent, request (i) one or more incremental term loan facilities (an “Incremental Term Facility” and increases in the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering of any Class (each such increase, an Increase Request substantially “Incremental Revolving Commitment Increase”) and/or (ii) the establishment of Incremental Term Commitments (which may be in the form attached hereto as Exhibit I (of increases to any existing Term Loans or new Term Loan tranches), in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the each case in a minimum amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided$5,000,000, however, that:
(a) provided that the aggregate amount of all such the Incremental Facilities Revolving Commitment Increases and Incremental Term Commitments to be established hereunder on any date shall not exceed the sum of (iA) $300,000,000 less the aggregate principal Incremental Base Amount as of such date plus (B) assuming that the full amount of such Incremental Equivalent Debt issuedRevolving Commitment Increases and/or such Incremental Term Commitments have been funded as Loans on such date, incurred or otherwise obtained in reliance on this clause (i)an additional aggregate amount, (ii) an amount such that, after giving Pro Forma Effect pro forma effect to the establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Commitments and the use of proceeds thereof, the Borrower shall be in pro forma compliance, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such Incremental Facility (assuming financial statements, the aggregate Revolving Increase is fully fundedlast day of the last fiscal quarter included in the Latest Financial Statements), the with a Total Leverage Ratio that is no greater than 3.50:1.00; provided further that the Borrower may elect to use clause (calculated B) above (in whole or in part) prior to using all or a portion of clause (A), or combine the use of clauses (A) and (B), and, if clauses (A) and (B) are available at the time of such incurrence and the Borrower does not make an election, the Borrower will be deemed to have elected to use clause (B) first. Each such notice shall specify (1) the date on which the Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, and (2) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment Increase or Incremental Term Commitments, (y) the Borrower shall not be required to approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a Pro Forma Basis based on right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the financial statements delivered Borrower proposes to become a Lender under any Incremental Term Commitment or Incremental Revolving Commitment Increase, if such Person is not then a Lender, must be an Eligible Assignee and, if any consent of the Administrative Agent would be required for an assignment of Loans or Commitment to such Lender, must be reasonably acceptable to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofand, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the interest margins, commitment fees, pricing and rate floors payable with respect to the extent accompanied by a permanent reduction Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Revolving Credit Commitments thereforApplicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case, not made with the proceeds of any long-term indebtedness (excluding, case as in effect for the avoidance of doubtother Revolving Loans and Revolving Commitments, Revolving Loans) shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement; provided that (IA) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (B) the Borrower scheduled amortization and optional or mandatory prepayment terms and provisions, including in respect of the allocations of payments to or within any such Class of any such Incremental Term Loans shall be deemed to have used capacity under clause based on current market terms at the time of incurrence thereof, (iC) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)no Incremental Term Loan shall be secured, and capacity under clause (iiiD) any other terms shall be deemed as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that no Incremental Term Loan shall be subject to be used before capacity under clause (i) a restrictive covenant not previously provided for in this Agreement unless this Agreement is amended to include such restrictive covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and (II) loans may be incurred under clauses (i), (ii) and (iii)conditions, and proceeds from any such incurrence under clauses (i)Incremental Term Loans made thereunder, (ii) shall be designated as a separate Series of Incremental Term Commitments and (iii) may be utilized in a single transaction or series Incremental Term Loans for all purposes of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));this Agreement.
(bc) The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Facilities and related guarantees Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loansbe, and the Administrative Agent; provided that no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless (subject, in the case of any Incremental Term Facility onlyCommitments incurred to finance a Limited Condition Transaction, may also rank junior to Section 1.08): (i) no Event of Default (or in right the case of payment Incremental Term Commitments incurred to finance a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be secured continuing on a junior basis with the Revolving Loansdate of effectiveness thereof, or may be unsecured;
(c) both immediately prior to and immediately after giving effect to such Incremental Facility, no Event Term Commitments or Incremental Revolving Commitment Increases and the making of Default shall have occurred Loans and be continuing; provided that if the proceeds issuance of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election Letters of the Borrower, the foregoing condition in this clause (c) shall only be required Credit thereunder to be satisfied made on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuingdate;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional commitments consisting of one or more letter of credit facilities (such commitments, collectively, the “Incremental Letter of Credit Commitments”) identifying and/or (yz) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments, the “ and the Incremental Letter of Credit Commitments, the “Incremental Loan Commitments”), by an additional Lender aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or additional such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents, (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d) and (e) and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase and (b) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment for an of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Lender) Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the amount of its Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (or additional amount of its each, a “New Revolving Credit CommitmentLoan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan” and, together with the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments may be paid in connection with such Incremental Term Loan Commitments. Any Incremental Term Loans incurred as a Term Loan Increase shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) [reserved];
(ii) [reserved];
(iii) the Incremental Term Loans and Incremental Term Loan Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured, secured solely by assets that do not constitute Collateral or rank pari passu or junior in right of security with the Obligations and, if secured, shall either (I) not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable) or (II) be secured solely by assets that do not constitute Collateral;
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that:
(a) , with respect to any broadly syndicated Dollar-denominated Incremental Term Loans in the aggregate amount form of all such “term b loans”made under Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issuedTerm Loan Commitments, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds Yield in respect of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable SOFR Margin, as applicable, in respect of such Initial Term Loans shall be secured adjusted so that the Yield in respect of such Initial Term Loans is equal to the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans (this clause (iv), the “MFN Adjustment”); provided, further, that the MFN Adjustment shall not apply to Incremental Term Loans (a) that mature on or after the twelve month anniversary of the Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Closing Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or, (d) the proceeds of which are used to consummate a Permitted Acquisition, (e) that are incurred in reliance on the Incremental Prepayment Basket and (f) that do not exceed an aggregate principal amount of the greatest of (x) $70,000,000, (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pari passu basis with Pro Forma Basis) at the Revolving Loanstime of incurrence and (z) 4% of Consolidated Total Assets as of the last day of the most recently ended Test Period (calculated on a Pro Forma Basis) (clauses (a) through (df) of this proviso, and in collectively, the case “MFN Exceptions”); and
(v) all other terms of any Incremental Term Facility onlyLoans (other than as described in clauses (i), (ii), (iii) and (iv) above) may also differ from the terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term Loans.
(e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be substantially identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and be secured on a junior basis of security with the Revolving LoansCredit Loans (and, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilityif applicable, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement or other lien subordination and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except intercreditor arrangement reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Agent); and
(except for covenants or other provisions ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (y) as are incorporated into this Agreement for the benefit of all existing Lenders if secured, shall either (which may I) not be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility secured by assets other than Collateral (and, if applicable, shall be agreed upon by subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofAdministrative Agent, Schedule 2.2 shall as applicable) or (II) be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such secured solely by assets that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.do not constitut
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Incremental Facilities. The Borrower may (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur additional Loans or add one or more incremental additional tranches of term loan facilities loans (the “Other Term Loans” and, together with any additional Loans incurred pursuant to this Section 2.23, “Incremental Second Lien Term Loans”; each such increase or tranche, an “Incremental Term Facility” ”); provided that at the time of each such request and upon the loans borrowed thereunder “effectiveness of each Incremental Term Loans”) Facility Amendment, no Default or (b) increase Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent Incremental Facilities shall not exceed, at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelytime, the “Incremental Facilities”greater of (x) identifying an additional Lender the sum of (or additional Revolving Credit Commitment for an existing Lender1) and the amount of its Revolving Credit Commitment $50,000,000 minus (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a2) the aggregate amount of all such Incremental Facilities shall not exceed (as defined in the sum of First Lien Credit Agreement) established pursuant to the First Lien Dollar Basket prior to such time minus (i3) $300,000,000 less the aggregate principal amount of all Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on Second Lien Term Loans established prior to such time pursuant to this Section 2.23 (the amount available under this clause (ix), the “Second Lien Dollar Basket”) and (iiy) an such other amount such that, after giving Pro Forma Effect to (each such Incremental Facility incurred under this clause (assuming y), a “Ratio-Based Incremental Facility”) so long as, upon the aggregate Revolving Increase is fully funded)effectiveness of each Incremental Facility Amendment, the Total Leverage Ratio (calculated Ratio, determined on a Pro Forma Basis based on the financial statements delivered (after giving effect to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if any Pro Forma Transaction, including any acquisition consummated with the proceeds of any such Ratio-Based Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments thereforFacility), in each case, not made with as if such Ratio-Based Incremental Facility had been outstanding on the last day of such Relevant Reference Period (provided that the Total Leverage Ratio shall be determined without netting the proceeds from the incurrence of any longsuch Ratio-term indebtedness Based Incremental Facility (excludingit being understood, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (such proceeds, to the extent compliant therewith) before capacity under clauses (ii) constituting cash or (iiiCash Equivalents, may be netted for subsequent determinations of the Total Leverage Ratio)), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.exceed 6.00:1
Appears in 1 contract
Samples: Second Lien Credit Agreement (Continental Building Products, Inc.)
Incremental Facilities. 2.10.1 The Borrower may Representative will be entitled at any time and from time to time no later than 180 days prior to the Maturity Date to deliver to Administrative Agent a request (an “Increase Request”) to increase the Canadian Revolving Loan Commitment or the US Revolving Loan Commitment (each, a “Facility Increase”), in an aggregate principal amount (i) for all such Facility Increases of the Canadian Revolving Loan Commitment of up to $20,000,000 and (ii) for all Facility Increases of the US Revolving Loan Commitment of up to $30,000,000; provided that (a) add one no Default or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount Event of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof Default exists immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofafter giving effect thereto, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities terms and related guarantees may rank pari passu documentation in right respect of payment a Facility Increase will be satisfactory to Administrative Agent, (c) no Facility Increase shall be effective earlier than ten (10) Business Days after the delivery of the Increase Request to Administrative Agent, (d) no Lender will be required or otherwise obligated to provide any such Facility Increase, (e) any such Facility Increase shall be in a minimum principal amount of $10,000,000, (f) any such Facility Increase shall have a maturity no later than the Maturity Date, and (g) prior to consummating a Facility Increase, the Representative shall have delivered to Administrative Agent a pro forma Compliance Certificate demonstrating that, upon giving effect to such Facility Increase, on a pro forma basis, the Borrowers would be in compliance with the financial covenants set forth in Section 14 as of the most recent Fiscal Quarter for which the Borrowers have delivered financial statements pursuant to Section 9.3. Facility Increases will be secured on a pari passu basis by the same Collateral as the existing Revolving Loan Commitments. Nothing in this Agreement shall be construed to obligate any Lender to participate in any Facility Increase.
2.10.2 Administrative Agent shall promptly notify each Lender of the proposed Facility Increase (whether US or Canadian) and of the proposed terms and conditions therefor agreed between the Representative and Administrative Agent. Each such Lender may, in its sole discretion, commit to participate in such Facility Increase by forwarding its commitment thereto to Administrative Agent in form and substance satisfactory to Administrative Agent. In consultation with the Revolving LoansRepresentative, and Administrative Agent shall allocate the commitments to be made as part of the Facility Increase to the Lenders from which it has received commitments. If Administrative Agent does not receive sufficient commitments from existing Lenders to effectuate the Facility Increase, it, in consultation with the case of any Incremental Term Facility onlyRepresentative, may also rank junior in right allocate unsubscribed amounts to any other Person (other than any Loan Party or any Affiliates thereof) acceptable to Administrative Agent, Borrowers and any lender providing commitments for such portion of payment and be secured the applicable Facility Increase.
2.10.3 Each Facility Increase shall become effective on a junior basis date agreed by the Representative and Administrative Agent (a “Facility Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 17.2.
2.10.4 Each Facility Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties) and Administrative Agent and each Lender or Person participating in such Facility Increase (collectively, the “Participating Lenders”), together with such other agreements, certificates and opinions as reasonably requested by Administrative Agent. The applicable yield on the Revolving Loans, or may Facility Increases will be unsecured;
(c) immediately prior to determined by the Representative and after giving effect to the Lenders providing such Incremental Facility, no Event of Default shall have occurred and be continuingFacility Increases at the time such Facility Increases are funded; provided that if the proceeds total yield on such Facility Increases would exceed the applicable current yield for the applicable Revolving Commitment subject to such increase, the margin for such Revolving Loan Commitment (including any prior Facility Increases) shall be automatically increased to equal the total yield on the new Facility Increases. Upon closing of the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionIncrease, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing new Participating Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase be Lenders hereunder, and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect made pursuant to its Revolving any Facility Increase shall for all purposes be deemed to be Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityhereunder.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add The Borrowers may by written notice to the Administrative Agent elect to request the establishment of one or more incremental new tranches or term facilities (each, a “New Term Loan Facility”) and/or increase the principal amount of the Term Loans or any Incremental Term Loans by requesting new term loan facilities commitments to be added to such Loans (an together with any New Term Loan Facility, the “Incremental Term Facility” and any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans” ) and/or request increase the commitments in respect of the Dollar Revolving Credit Facility (an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and the loans borrowed thereunder thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”), in an aggregate amount not in excess of the greater of (x) $150,000,000 and (y) an unlimited amount if, after giving effect to the incurrence of such amount, the First Lien Net Leverage Ratio is less than or equal to 4.50:1.00 on a Pro Forma Basis (assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Facilities are fully drawn) and not less than $5,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent); provided, that, notwithstanding the foregoing, Incremental Term Loans may be incurred without regard to the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on the date of incurrence to permanently prepay and refinance on a dollar-for-dollar basis Term Loans (and any such Incremental Term Loans, the “Refinancing Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrowers propose that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)Administrative Agent, (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) (each such Affiliate or other Person, a “New Loan Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that all existing Lenders shall be approached first to provide all or a portion of the Incremental Facility and may elect or decline, in their sole discretion, to provide Incremental Loans in respect of such Incremental Facility and (iii)) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Facility. Such Incremental Facility shall become effective, as of such Increased Amount Date; provided that (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (B) both before and proceeds from after giving effect to the making of any such incurrence under clauses Incremental Loans, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid; (C) any Incremental Facility provided by any New Loan Lender shall be effected pursuant to one or more joinder agreement in form and substance satisfactory to the Administrative Agent and executed and delivered by the Borrowers and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers 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.
(b) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any Incremental Revolving Facility shall be, except as otherwise set forth herein, identical to the existing Dollar Revolving Credit Facility.
(d) The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in clause (a) above, identical to the Tranche B Term Loans; provided that, (i)) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity of the Term Loans, (ii) and the final maturity date of with respect to any New Term Loans shall be no shorter than the Latest Maturity Date, (iii) may if the initial yield on any New Term Loans (as determined by the Administrative Agent to be utilized in a single transaction or series equal to the sum of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bx) the Eurocurrency Rate on the New Term Loans and (y) if the New Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from PAH or any of its Subsidiaries for doing so (the amount of such fee, expressed as a percentage of the Incremental Facilities Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such New Term Loans and related guarantees may (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Eurocurrency Rate Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the Eurocurrency Rate margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the other Applicable Rates for the Term Loans, consistent with the foregoing, shall be made), (iv) any New Term Loan Facility shall rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank or junior in right of payment and be secured on a pari passu or junior basis with respect to security with the Revolving Loans, Term Loans or may be unsecured;unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent). Each joinder agreement referred to in clause (a) above 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 provision of this Section 2.14.
(ce) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Facility Loans that are used substantially concurrently to finance be additional Tranche B Term Loans or Dollar Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B Term Loans or Dollar Revolving Credit Loans, as applicable, on a Limited Condition Acquisition, then pro rata basis. This may be accomplished at the election discretion of the Borrower, the foregoing condition in this clause (c) shall only be required Administrative Agent by requiring each outstanding Eurocurrency Rate Borrowing to be satisfied on the LCT Test Date; provided, however, that converted into a Base Rate Borrowing on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Borrowing on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the consummation Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Borrowing then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Limited Condition Acquisition and Interest Period shall equal the funding Eurocurrency Rate for a period approximately equal to the remainder of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect Interest Period (as determined by the Borrower in good faith and the Administrative Agent acting reasonablytwo Business Days before the date such Incremental Loan is made) market terms and conditions (taken as a whole) at plus the time Applicable Rate then in effect. In addition, to the extent any Incremental Term Loans are to be additional Tranche B Term Loans, the applicable scheduled amortization payments under Section 2.07 required to be made after the making of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined such Incremental Term Loans shall be ratably increased by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity aggregate principal amount of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the such Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityTerm Loans.
Appears in 1 contract
Samples: Credit Agreement (Platform Specialty Products Corp)
Incremental Facilities. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (awhereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) add one or more incremental tranches of term loan facilities loans (each such tranche, an “Incremental Term FacilityLoan” and collectively, the loans borrowed thereunder “Incremental Term Loans”) or (by) increase one or more increases in the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in each such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (increase, a “Revolving Commitment Increase” and, together with the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyLoans, the “Incremental FacilitiesLoans”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less both at the aggregate principal amount time of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount any such that, after giving Pro Forma Effect to such Incremental Facility (assuming request and upon the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds effectiveness of any Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing below (a an “Limited Condition AcquisitionIncremental Loan Closing Date”), then at the election no Default or Event of the Borrower, the foregoing calculation of the Total Leverage Ratio Default shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and exist after giving effect to such Incremental Facility, no Event the extension of Default shall have occurred and be continuing; provided that if the proceeds of credit contemplated on the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Loan Closing Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(dii) each of the representations and warranties set forth made by any Loan Party in Section 6 and in or pursuant to the other Loan Documents shall be and remain true and correct in all material respects on and as of the effective date Incremental Loan Closing Date, as if made on and as of such Incremental Facility date (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date); and
(iii) the Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the proceeds of limit set forth in the Incremental Facility are used substantially concurrently next sentence). Notwithstanding anything to finance a Limited Condition Acquisition, then at the election of the Borrowercontrary herein, the foregoing condition in this clause (d) aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);not exceed $300,000,000.
(eb) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans (i) all Incremental Term Loans shall have a maturity date no not mature earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms terms, including with respect to interest rate and amortization, and pursuant to documentation documentation, to be agreed between determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans made pursuant to a Revolving Commitment Increase shall be identical to the terms of the existing Revolving Commitments and Revolving Loans.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the applicable lenders providing such relevant Incremental Loans. Incremental Term Facility; provided that such terms either (A) reflect (Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants any such other bank or other provisions financial institution being called an “Additional Lender”); provided that (xi) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in provide any Incremental Facility Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and no (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender.
(d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(e) Upon each increase in the Revolving Commitments pursuant to this Section, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment and (ii) if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be increased without its consent theretoaccompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and each Lender may at its option, unconditionally and without cause, decline pro rata payment requirements contained elsewhere in this Agreement shall not apply to participate in any Incremental Facilitythe transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) identifying an or a separate Class of Term C Loans (the commitments for additional Lender term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (or additional z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitment for an existing LenderCommitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit CommitmentIncremental Term C Loan Commitments, the “Incremental Loan Commitments”); provided, howeverby an aggregate 123 AMERICAS 122173769123894352 amount, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less when combined with the aggregate principal amount of Incremental Equivalent all Permitted Other Debt issued, incurred or otherwise obtained in reliance on this Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i)) (x) other than as described inunless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption noticeLimited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an amount such Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, after giving Pro Forma Effect to such in the case of Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Loans or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are Loan Commitments used substantially concurrently to finance a Permitted Acquisition or similar investment other acquisition constituting a permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental FacilityInvestment, only the Specified Representations (conformed as necessary for such acquisition) shall have be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (without duplication of materiality qualifiers);
(eiii) (i) all the Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility Loan Commitments shall be on terms and effected pursuant to documentation to be agreed between the Borrower one or more Incremental Amendments executed and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined delivered by the Borrower and the Administrative Agent Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d) and (except for covenants or other provisions e), and (xiv) applicable only the Borrower shall make any payments required pursuant to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of Section 2.11 in connection with the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental FacilityLoan Commitments, as applicable. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no No Lender shall have any obligation to participate in provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Facility Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and no (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and 124 AMERICAS 122173769123894352 conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be increased without deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date (x) on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its consent theretoIncremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender may at with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its optionIncremental Term C Loan Commitment of such Series, unconditionally and without cause(ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, decline to participate in if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Facility.Loans. AMERICAS 122173769123894352
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower may (a) add shall have the right, at any time prior to the Revolver Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of one or more incremental term loan facilities increases to the Revolving Committed Amount (each an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate in an amount of the Revolving Credit Commitments by delivering an Increase Request substantially not to exceed $100,000,000 in the form attached hereto as Exhibit I (or in such other form reasonably acceptable aggregate. The following terms and conditions shall apply to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
Facility: (a) the aggregate amount of all such Incremental Facilities shall not exceed loans made under the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated other Credit Party Obligations on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofpari passu basis, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with Facility shall have an interest rate margin no lower than the Applicable Percentage for the existing Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier sooner than the Revolver Maturity Date, (d) the Incremental Facility shall be entitled to the same voting rights as the existing Revolving Credit Termination Date Loans and (ii) all Revolving Increases shall terminate be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Credit Termination Date;
Loans to the extent such Incremental Facility is an increase to the Aggregate Revolving Committed Amount, (e) any such Incremental Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (f) any the Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingshall be obtained from existing Lenders or from other banks, for financial institutions or investment funds, in each case in accordance with the avoidance of doubtterms set forth below, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except the proceeds of the Additional Loans will be used for the purposes set forth in Section 3.11, (h) the Borrower shall execute a Note in favor of any new Lender that requests a Note, (i) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (j) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, as otherwise provided of the date of such Incremental Facility and, after giving effect to any new Additional Loans thereunder on a Pro Forma Basis, the Credit Parties will be in this compliance with the financial covenants set forth in Section 2.165.9 and no Default or Event of Default shall exist, any and (k) the Administrative Agent shall receive an opinion of counsel to the Credit Parties and such other documentation as it deems reasonable necessary to effectuate the Incremental Term Facility, all in form and substance satisfactory to the Administrative Agent. Participation in the Incremental Facility shall be on terms and pursuant offered first to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the existing Revolving Credit Facility Lenders and each such Revolving Lender shall have at least ten (10) Business Days to respond to such offer, but each such Revolving Lender shall have no obligation to provide all or (y) as are incorporated into this Agreement for any portion of the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements))Incremental Facility. The effective date If the amount of the Incremental Facility shall be agreed upon by exceed the Borrower and commitments which the existing Revolving Lenders providing are willing to provide with respect to the Incremental Facility. Upon , then the effectiveness thereofBorrower may invite other banks, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase financial institutions and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein investment funds reasonably acceptable to the contrary, no Lender shall have any obligation Administrative Agent to participate in any join this Credit Agreement as Lenders hereunder for the portion of the Incremental Facility not taken by existing Revolving Lenders, provided that such other banks, financial institutions and no Lender’s Revolving investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Commitment shall Agreement or any other Credit Document as may be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline necessary to participate in any incorporate the terms of the Incremental FacilityFacility therein.
Appears in 1 contract
Incremental Facilities. The Borrower may at any time and from time to time, by delivery to the Administrative Agent of a written notice signed by a Responsible Officer of the Borrower (a) add one or more incremental whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loan facilities loans (an “Incremental Term Facility” and the ”), a new tranche of revolving loans borrowed thereunder (an “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver IncreaseTranche Facility” and and, together with any the Incremental Term Facilities, collectivelyFacility, the “Incremental Facilities”) identifying or an additional Lender (or additional increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Commitment”) or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (i) no Default or Event of Default shall exist, and (ii) Holding shall be in Pro Forma Compliance. Each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, and each Incremental Revolving Tranche Facility and Incremental Revolving Commitment for shall be in an existing Lender) and the aggregate principal amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
not less than $25,000,000. Each Incremental Facility (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank or junior in right of payment and be secured on a junior basis of security with the Revolving Credit Loans and the Term Loans, or may be unsecured;
(b) in the case of an Incremental Revolving Tranche Facility, shall not mature earlier than the Termination Date with respect to the Revolving Credit Facility, (c) immediately prior to and after giving effect to such in the case of an Incremental Term Facility, no Event of Default shall have occurred and be continuing; provided that if not mature earlier than the proceeds of Termination Date with respect to the Incremental Term B Facility are used substantially concurrently (but may, subject to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) below, have amortization and commitment reductions prior to such date), (d) in the case of an Incremental Term Facility, shall only have a weighted average life that is not less than that of the Term B Loans, (e) in the case of an Incremental Term Facility, for purposes of prepayments, shall be required treated no more favorably than the Term B Loans and (f) shall not contain additional or different covenants or financial covenants which are more restrictive than the covenants herein on the Closing Date or the Financial Covenants unless otherwise consented to by the Administrative Agent. Any such notice shall set forth the amount and terms of the relevant Incremental Facility or Incremental Revolving Commitment requested by the Borrower and to be satisfied on agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Facility or providing such Incremental Revolving Commitment. The Borrower may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the LCT Test Date; providedAdministrative Agent and the Borrower and, howeverwith respect only to Incremental Revolving Tranche Facilities and Incremental Revolving Commitments, that on the date Swing Line Lender, the L/C Issuer and the Alternative Currency Funding Fronting Lender (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Facility or provide a portion of the consummation Incremental Revolving Commitment, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Limited Condition Acquisition and the funding Incremental Facility or provide a portion of such Incremental FacilityRevolving Commitment. Commitments in respect of Incremental Facilities or any Incremental Revolving Commitment shall become Commitments under this Agreement, no Event and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of Default under Section 9.01(a)any other Lenders, (j) or (k) hereof shall have occurred effect such amendments to this Agreement and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents to the extent (but only to the extent) necessary to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be and remain true and correct subject to the satisfaction on the date thereof of each of the conditions set forth in subsection 6.2 (it being understood that all material respects on references to “the date of such Borrowing” in such subsection 6.2 shall be deemed to refer to the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsAmendment), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the . The proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) Facilities or any Incremental Term Facility may permit voluntary Revolving Commitment will be used for working capital and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitygeneral corporate purposes.
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Incremental Facilities. The Borrower may (a) add one Provided (w) there exists no Default or more incremental term loan facilities Event of Default, (an “Incremental Term Facility” x) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 7.11, in each case recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements are available, (y) the Borrower shall have delivered a certificate of a Responsible Officer to the effect set forth in clauses (w) and (x) above, together with reasonably detailed calculations demonstrating compliance with clause (x) above (which calculations shall, if made as of the loans borrowed thereunder “Incremental Term Loans”last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.01(a) or (b) increase and Section 6.02(b), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the aggregate relevant period) and (z) subject to the conditions set forth in clause (f) below, the Borrower may at any time or from time to time after the Amendment Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more tranches of new term loans (“New Term Loans”) under one or more new term facilities (the “New Term Loan Facility”), (ii) one or more increases in the total amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver IncreaseAdditional Revolving Facility Commitments”) under the Revolving Facility, provided, that such Additional Revolving Facility Commitments shall be on the same terms as the existing Revolving Credit Commitments and in all respects shall become part of the Revolving Facility hereunder, or (iii) one or more new revolving credit commitments (the “Incremental Revolving Facility Commitments” and together with any Additional Revolving Facility Commitments, the “Incremental Revolving Credit Commitments”) under one or more additional revolving credit facilities (the “Incremental Revolving Facility” and together with any New Term Facilities, collectivelyLoan Facility, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and ). Notwithstanding anything to the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedcontrary herein, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i)the Additional Revolving Facility Commitments, (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election principal amount of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date Incremental Revolving Facility Commitments and (iii) the aggregate principal amount of all New Term Loan Facilities incurred after the Amendment Effective Date shall not exceed (x) $25,000,000 plus (y) on and after the SCH Completion date, an amount equal to all voluntary prepayments of, repurchases and/or cancellations additional $100,000,000 (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (ix) and (IIy) loans collectively, the “Incremental Cap”). Each Additional Revolving Facility Commitment and Incremental Revolving Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be incurred less than $5,000,000 if such amount represents all the remaining availability under clauses (i), (ii) the Incremental Cap. Each new Term Loan Facility shall be in a minimum principal amount of $25,000,000 and (iii), and proceeds from any integral multiples of $1,000,000 in excess thereof; provided that such incurrence under clauses (i), (ii) and (iii) amount may be utilized in less than $25,000,000 if such amount represents all the remaining availability under the Incremental Cap; provided that the Incremental Cap shall be reduced on a single transaction or series of related transactions dollar-for-dollar basis by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iiiany Permitted Senior Notes issued pursuant to Section 2.14(g));.
(b) the The Incremental Facilities and related guarantees may Revolving Facility (i) shall rank pari passu in right of payment and be secured on a pari passu basis of security with the Revolving LoansFacility, (ii) shall mature no earlier than the Maturity Date, (iii) shall have pricing as agreed between the Borrower and such lenders providing such Incremental Revolving Credit Commitments (the “Incremental Revolving Lenders”); provided that the pricing in respect thereof shall be consistent with then prevailing market rates, (iv) if the case of All-In-Yield related to any Incremental Revolving Facility exceeds the All-In-Yield relating to the Revolving Credit Loans immediately prior to the effectiveness of the applicable Incremental Revolving Facility by more than 0.25% per annum, the Applicable Rate relating to the Revolving Credit Loans shall be adjusted to be at least equal to the All-In-Yield relating to such Incremental Revolving Facility minus 0.25% per annum, (v) may provide for a new Letter of Credit sublimit to the extent approved in its sole discretion by such L/C Issuer (who may be the existing L/C Issuers) (an “Incremental L/C Issuer”) that has agreed to provide a new Letter of Credit commitment (an “Incremental L/C Commitment”), (vi) may provide for a new Swing Line sublimit to the extent approved in its sole discretion by the swing line lender (who may be the existing Swing Line Lender) that has agreed to provide such Incremental Swing Line Commitment (an “Incremental Swing Line Lender”) and (vii) shall otherwise have the same terms as the existing Revolving Facility.
(c) The New Term Loan Facility only, may also (i) shall rank junior pari passu in right of payment and be secured on a junior basis of security with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default (ii) shall have occurred pricing as agreed between the Borrower and be continuingsuch lenders (the “New Term Lenders” and together with the Incremental Revolving Lenders and any Lender or Additional Lender providing Additional Revolving Facility Commitments, the “Incremental Lenders”) providing commitments in respect of such New Term Loans (the “New Term Loan Commitments”); provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionpricing in respect thereof shall be consistent with then prevailing market rates, then at the election of the Borrower, the foregoing condition in this clause (ciii) shall only be required not mature earlier than the Maturity Date, (iv) the Weighted Average Life to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation Maturity of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental New Term Loans shall have a maturity date be no earlier shorter than the remaining average life to maturity of the Revolving Credit Termination Date Facility and (iiv) all other terms of such New Term Loans, if not consistent with the terms of the existing Revolving Increases shall terminate on the Revolving Credit Termination Date;
Facility, (fA) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except will be as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders New Term Lenders providing such Incremental New Term FacilityLoans and (B) other than with respect to pricing and amortization, shall not be more restrictive than the terms of any existing Revolving Facility unless the Lenders under the existing Revolving Facility also receive the benefit of the more restrictive terms (without any consent being required); provided that such the terms either of the New Term Loan Facility may include pro rata mandatory prepayment requirements for asset sales and other mandatory prepayment events;
(Ad) reflect (as determined by Each written notice from the Borrower in good faith pursuant to this Section 2.14 shall set forth the requested amount, proposed terms of the relevant New Term Loans or Incremental Revolving Facility and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at proposed effective date for the time making of incurrence such Incremental Facility or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those increase in the Revolving Facility (the “Increase Effective Date”). New Term Loans may be made, and Incremental Revolving Credit Commitments and Additional Revolving Facility when taken as Commitments may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to make a whole and, in each case, as reasonably determined portion of any New Term Loan or of any Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that (x) the Borrower shall first request any such New Term Loan, Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments from the existing Lenders prior to soliciting commitments from Additional Lenders and (y) any such Additional Lenders shall be reasonably acceptable to the Administrative Agent (except for covenants who shall be presumed to decline such request if not affirmatively accepted within 10 Business Days from the date of such request). No existing Lender shall be obligated to provide any New Term Loans, Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments, unless it so agrees.
(e) Commitments in respect of New Term Loans, Incremental Revolving Commitments and or Additional Revolving Facility Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other provisions (x) applicable only Loan Documents, executed by the Borrower, each Incremental Lender, each Incremental L/C Issuer, if any, each Incremental Swing Line Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to periods after this Agreement and the latest final maturity other Loan Documents as may be necessary, including any amendments to the Schedule I, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Credit Loans in respect of Additional Revolving Facility or (y) as Commitments and Incremental Revolving Facility Commitments, when originally made, are incorporated into this Agreement for the benefit included in each Borrowing of all existing Lenders (which may be accomplished without further amendment voting requirements))outstanding Revolving Credit Loans on a pro rata basis. The effective date Borrower shall pay to the applicable Lender any costs of the type referred in Section 3.05 in connection with the foregoing. The Borrower will use the proceeds of the New Term Loans, Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have Commitments and or Additional Revolving Facility Commitments for general corporate purposes or any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityother purpose not prohibited hereby.
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Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, from time to time and upon at least ten (a10) add Business Days’ prior written notice to the Administrative Agent (an “Incremental Request”), to request to incur one or more incremental tranches of term loan facilities loans (“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.16, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) and/or increase the aggregate amount of the Aggregate Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” Incremental Revolving Commitments”; and together with any Incremental Term Facilities, collectively, revolving loans made thereunder the “Incremental FacilitiesRevolving Loans”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedthe Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”), subject, however, thatin any such case, to satisfaction of the following conditions precedent:
(ai) the aggregate amount of all such Incremental Facilities Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.16 shall not exceed the sum of (iA) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause 200,000,000 plus (i), (iiB) an unlimited amount such that, so long as after giving Pro Forma Effect effect to the incurrence of such Incremental Facility Loans (assuming the aggregate Revolving Increase is fully full amount of the Incremental Facility Loans have been funded)) and any related transactions, the Total Leverage Ratio (calculated on a Pro Forma Basis Basis, the Consolidated Net Leverage Ratio, based on the last Fiscal Quarter ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”6.01(b), then at the election of the Borroweris less than 3.25:1.00;
(ii) subject, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any an Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are Loan being used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrowerto Section 1.08, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the consummation of such Limited Condition Acquisition and the funding incurrence of such Incremental FacilityFacility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and any related transactions, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(diii) each subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Article VII;
(iv) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, the representations and warranties set forth in Section 6 and in the other Loan Documents Article V shall be and remain true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the effective date of on which such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Amendment is to become effective, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already or if such representation and warranty is qualified by materialitymateriality or Material Adverse Effect, otherwise it shall be true and correct in all respects) as of such earlier date; provided that if the proceeds of the ;
(v) any Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) Revolving Commitments shall only be required to be satisfied made on the LCT Test Date; providedsame terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, howeverincluding with respect to maturity date, that on interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct existing revolving credit facility set forth in all material respects (without duplication of materiality qualifiersSection 2.01(b);
(evi) [reserved];
(vii) in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the existing Loans, (B) (iI) all Incremental rank pari passu or junior in right of security with the existing Loans (subject, in the case of Other Term Loans shall secured on a junior basis, to an intercreditor agreement satisfactory to the Administrative Agent) and not be secured by any assets other than the Collateral or (II) be unsecured , (C) not be guaranteed by any Person that is not a Loan Party, (D) have a maturity date that is no earlier than the Revolving Credit Termination Maturity Date for the Loans, and (iiE) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary have pricing and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Lenders of such Other Term Loans; provided that, (i) any such Other Term Loan may include mandatory prepayments on account of asset sales, insurance and condemnation receivables, extraordinary receipts, debt issuances (other than permitted indebtedness) and excess cash flow on customary terms market for such provisions and (ii) the other terms and documentation in respect of any Other Term Loans will be reasonably satisfactory to the Administrative Agent and the Borrower;
(except for covenants viii) the Administrative Agent shall have received additional commitments in a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment); and
(ix) the Administrative Agent shall have received customary closing certificates, legal opinions and resolutions of the Loan Parties that it may reasonably request relating to the corporate or other provisions necessary authority for such Incremental Facility Loans and the validity of such Incremental Facility Loans, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (xan “Incremental Facility Amendment”) applicable only to periods after this Agreement, giving effect to the latest final maturity of modifications permitted by this Section 2.16 (and subject to the Revolving Credit Facility or (y) as are incorporated into this Agreement for limitations set forth in the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsimmediately preceding paragraph)). The effective date , executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be agreed upon required to be executed or approved by the Borrower and any Lender, other than the Lenders providing the such Incremental Facility. Upon the effectiveness thereofTerm Loans and/or Incremental Revolving Commitments, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase as applicable, and the new Lender (orAdministrative Agent, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect order to its Revolving Loans each Lender shall have outstanding its Percentage be effective. The effectiveness of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment Amendment shall be increased without its consent thereto, subject to the satisfaction on the date thereof of each of the conditions set forth above and each Lender may at its option, unconditionally and without cause, decline to participate as such other conditions (if any) as requested by the Lenders under the Incremental Facility established in any Incremental Facilityconnection therewith.
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Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower may (a) add shall have the right, at any time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of one or more incremental term loan facilities increases to the Revolving Committed Amount that will become part of the existing Revolving Credit Facility (each such increase to the Revolving Committed Amount being referred to herein as an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto all such increases being referred to herein as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying in an additional Lender (or additional Revolving Credit Commitment amount for an existing Lender) all such Incremental Facilities not to exceed $100,000,000 in the aggregate. The following terms and conditions shall apply to the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
Incremental Facility: (a) the aggregate amount loans made under each Incremental Facility (each an “Additional Loan”) shall constitute Secured Obligations and will be secured and guaranteed with the other Secured Obligations on a pari passu basis, (b) the terms and conditions applicable to any such additional Commitments shall be the same as those applicable to the then existing Commitments (including, without limitation, as to interest rate), (c) the maturity date of all any such Incremental Facilities Facility shall not exceed be no earlier than the sum Maturity Date, (d) the loans and/or commitments established pursuant to this Section 2.5 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents (including the same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Loans, (ie) $300,000,000 less the aggregate any such Incremental Facility shall be in a minimum principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained $10,000,000 and integral multiples of $1,000,000 in reliance on this clause (i)excess thereof, (iif) an amount such that, after giving Pro Forma Effect to such the Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(ag) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are the Additional Loans will be used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubtpurposes set forth in Section 3.11, Revolving Loans) (it being understood that (Ih) the Borrower shall be deemed to have used capacity under clause execute a Note in favor of any new Lender that requests a Note, (i) (the conditions to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized Extensions of Credit in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default Section 4.2 shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a)been satisfied, (j) or (k) hereof the Administrative Agent shall have occurred received from the Borrower updated financial projections and be continuing;
(d) an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, as of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility and, after giving effect to any new Additional Loans thereunder on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 and no Default or Event of Default shall exist, and (where not already qualified by materiality, otherwise in all respects), except k) the Administrative Agent shall receive an opinion of counsel to the extent Credit Parties and such other documentation as it deems reasonable necessary to effectuate the same expressly relate Incremental Facility, all in form and substance satisfactory to an earlier datethe Administrative Agent. The Borrower may invite other banks, in which case they shall be true financial institutions and correct in all material respects (where not already qualified by materiality, otherwise in all respects) investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as of such earlier date; provided that if Lenders hereunder for the proceeds portion of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionnot taken by existing Lenders, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as determined by the Borrower in good faith and the Administrative Agent acting reasonablymay reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to (or amendment and restatement of) market terms and conditions (taken this Credit Agreement or any other Credit Document as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than may be necessary to incorporate the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitytherein.
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Incremental Facilities. The Borrower may (a) add The Borrower or any other Guarantor may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent request (i) one or more incremental additional Classes of term loan facilities loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the same Class of any existing Class of term loans, which may be provided in the same currency as the existing Class of term loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”), (ii) one or (b) increase more increases in the aggregate amount of the Revolving Credit Commitments by delivering of any Class (each such increase, an Increase Request substantially “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in the form attached hereto as Exhibit I (Dollars, in any Alternative Currency or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase any combination thereof (the “Revolver Increase” and Additional/Replacement Revolving Credit Commitments”, and, together with any the Incremental Term Facilities, collectivelyLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”) identifying an additional Lender (or additional ); provided that, subject to Section 1.11, at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment for an existing Lender) and the amount of its Increase or Additional/Replacement Revolving Credit Commitment is made or effected (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iand after giving pro forma effect thereto), (ii) an amount such that, after giving Pro Forma Effect except as set forth in the proviso to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or clause (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilitybelow, no Event of Default shall have occurred and be continuing; provided that if (or, in the proceeds case of the Incurrence or provision of any Incremental Facility are used substantially concurrently to finance a Limited Condition in connection with an Acquisition, then at other Investment (including any Investment in new facilities or projects) or similar transactions or any repayment, prepayment, redemption, repurchase, defeasance, satisfaction and discharge or other Refinancing or similar payment in respect of Indebtedness or Capital Stock and that, in the election case of the BorrowerCapital Stock, the foregoing condition requires irrevocable notice in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facilityadvance thereof, no Event of Default under Section 9.01(a), (j11.1 or Section 11.5) or (k) hereof shall have occurred and be continuing;.
(db) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be, unless otherwise agreed by the representations and warranties Administrative Agent, in an aggregate principal amount that is not less than $5,000,000 or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, ¥5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in Section 6 and minimum increments of $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, ¥1,000,000, A$1,000,000 or like amount in any other Loan Documents Alternative Currency, as applicable) in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving -124- #96562806v11
(i) The Incremental Term Loans (A) shall be secured on an equal priority basis with, and remain true and correct in only by all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance or a Limited Condition Acquisition, then at the election of the Borrowerportion of, the foregoing condition Collateral securing the Obligations (and which may be equal or junior in this clause (dright of payment with the Initial Term Loans and the 2022 Incremental Term Loans) and shall only be required guaranteed by the Credit Parties, (B) shall not mature earlier than the Latest Maturity Date, (C) shall not have a shorter Weighted Average Life to be satisfied on Maturity than the LCT Test Dateremaining Initial Term Loans or the remaining 2022 Incremental Term Loans; provided, howeverthat, that on notwithstanding the date of foregoing, any customary bridge facility (so long as the consummation of long-term Indebtedness into which any such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have customary bridge facility is to be true and correct in all material respects converted or exchanged otherwise satisfies the requirements of clauses (without duplication of materiality qualifiers);
(eB) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (iiC) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.162.14(c) and, any Incremental Term Facility shall be on terms and pursuant in the case of a lending facility, such conversion or exchange is subject only to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; conditions customary for similar conversions or exchanges), term loan “A” facilities provided that such terms either (A) reflect by commercial banks or similar financial institutions (as determined by the Borrower in good faith faith) and Incremental Term Loans that are Incurred in connection with an Acquisition, Investment (including any Investment in new facilities or projects) or other similar transaction and Incremental Term Loans in an amount not exceeding the Administrative Agent acting reasonably) market terms and conditions Incremental/Refinancing Maturity Limitation Excluded Amount, or to the extent such Incremental Term Loans or Incremental Commitments are subject to Customary Escrow Provisions (taken so long as a whole) at the time Indebtedness that is released from escrow otherwise satisfies the requirements of incurrence or effectiveness or clause (B) are not materially more restrictive and this clause (excluding feesC)), original issue discountmay be Incurred without regard to clause (B) and/or (C) of this Section 2.14(c)(i), (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates or payment-in-kind interest), pricing, interest ratesrate margins, rate floors, spread adjustmentsfees, call premiumsAHYDO Catch-Up Payments, and optional and mandatory prepayment and redemption terms) than the terms under those funding discounts, original issue discounts, closing payments, maturity, currency types (subject, in the Revolving Credit Facility when taken case of currency types other than Dollars, Euros and the Alternative Currencies, to the consent of the Administrative Agent, such consent not to be unreasonably withheld) and denominations and prepayment terms and premiums for the Incremental Term Loans as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date lenders of the Incremental Facility shall be agreed upon by Term Loans; provided that, during the Borrower period commencing on the Closing Date and ending on the Lenders providing date that is twenty-four (24) months after the Closing Date, in the event that the Effective Yield for any Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender Term Loans that are broadly marketed or syndicated floating rate term “B” loans denominated in Dollars (or, if applicable, existing Lenderother than Incremental Term Loans (1) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein established pursuant to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.proviso of Section -125- #96562806v11
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” at any time and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments from time to time prior to April 30, 2006, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly deliver a copy to Section 8.05(aeach of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (ban "Incremental Revolving Facility") hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00or a combination thereof; provided that if at the proceeds time of any such request and upon the effectiveness of the Incremental Facility are used substantially concurrently Amendment referred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofbelow, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio no Default shall only be required to be satisfied on the LCT Test Date exist and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (iin the aggregate) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)$150,000,000, and capacity under clause each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (iiia) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche D Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (c) shall have a weighted average life that is longer than that of the Revolving Credit Commitments, the Tranche A Term Loans and the Tranche D Term Loans, taken as a whole, and (d) for purposes of prepayments, shall be secured on a pari passu basis with treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, and in the case of any an Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all the terms and conditions applicable to any Incremental Term Loans shall have a maturity date no earlier than Facility maturing after the Revolving Credit Termination Tranche D Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche D Maturity Date and (ii) all Revolving Increases shall terminate on the Incremental Facilities may be priced differently than the Term Loans and the Revolving Credit Termination Date;
Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental Facility. 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 (f) any such bank or other financial institution being called an "Additional Lender"), to extend commitments under the Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepaymentsFacility, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility each existing Lender shall be on terms afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facility. 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 documentation an amendment (an "Incremental Facility Amendment") to be agreed between this Agreement and, as appropriate, the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined other Loan Documents, executed by the Borrower in good faith Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent acting reasonably) market terms Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and conditions (taken the other Loan Documents as a whole) at the time of incurrence may be necessary or effectiveness or (B) are not materially more restrictive (excluding feesappropriate, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and opinion of the Administrative Agent (except for covenants or other Agent, to effect the provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements))Section. The effective date effectiveness of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Incremental
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Incremental Facilities. The Borrower may (a) add The Borrowers and any one or more incremental term loan facilities Lenders (an “including New Lenders as defined below) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Facility” Loans or Incremental Revolving Commitments, as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and the loans borrowed thereunder “Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the case of Incremental Term Loans”, (x) or the applicable Incremental Term Maturity Date, (by) increase the amortization schedule for such Incremental Term Loans, and (z) the Applicable Margin for such Incremental Term Loans which, in the cases of each of the foregoing clauses (x), (y) and (z) shall comply with Section 2.15(d) below. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of borrowings of Incremental Term Loans and Incremental Revolving Commitments obtained after the Amendment Effective Date pursuant to this paragraph shall not exceed $50,000,000 and the aggregate Incremental Revolving Credit Commitments Commitment shall not exceed $10,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000 and (y) no more than three Increased Facility Closing Dates may be selected by delivering an Increase Request the Borrowers after the Amendment Effective Date. No Lender shall have any obligation to participate in any increase described in this Section 2.15 unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Lead Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.15(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form attached of Exhibit D-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto as Exhibit I and shall be bound by and entitled to the benefits of this Agreement.
(or in such other form reasonably acceptable to c) Unless otherwise agreed by the Administrative Agent) , on each Increased Facility Closing Date with respect to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyRevolving Credit Facility, the “Incremental Facilities”) identifying an additional Lender (or additional Borrowers shall borrow Revolving Credit Commitment for Loans under the relevant increased Revolving Credit Commitments from each Lender participating in the relevant increase in an existing Lender) and amount determined by reference to the amount of its Revolving Credit Commitment each Type of Loan (and, in the case of LIBOR Rate Loans, of each LIBOR Tranche) which would then have been outstanding from such Lender if (i) each such Type or additional amount of its Revolving Credit Commitment); provided, however, that:
LIBOR Tranche had been borrowed or effected on such Increased Facility Closing Date and (aii) the aggregate amount of all each such Type or LIBOR Tranche requested to be so borrowed or effected had been proportionately increased. The LIBOR Rate applicable to any LIBOR Rate Loan borrowed pursuant to the preceding sentence shall equal the LIBOR Rate then applicable to the LIBOR Rate Loans of the other Revolving Credit Lenders in the same LIBOR Tranche.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facilities Term Loans and/or increased Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. Any increase in Revolving Credit Commitments under this Section 2.15 shall be on terms and pursuant to documentation applicable to the Revolving Credit Loans (including the maturity date in respect thereof) and any Incremental Term Loans shall be on terms and pursuant to documentation to be determined; provided that, in respect of any Incremental Term Loans, to the extent such terms and documentation are not exceed consistent with the sum Term Loans outstanding under this Agreement as of any Increased Facility Activation Date,
(i) $300,000,000 less in the aggregate event the Incremental Term Loans to be funded on any Increased Facility Activation Date bear interest at a rate (Base Rate, LIBOR Rate or other index) which exceeds the rate of interest accruing on Term Loans and Revolving Credit Loans as of such date under Section 2.08 by more than one-half of one percent (0.50%), then, from and after such Increased Facility Activation Date, all Term Loans outstanding on such Increased Facility Activation Date and all Revolving Credit Loans shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the interest rate accruing on such Incremental Term Loans, minus, one-half of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause one percent (i0.50%), ;
(ii) an amount Scheduled principal repayments on Incremental Term Loans shall only be made on Interest Payment Dates for the Base Rate Loans (or less frequently if agreed to by the related Incremental Term Lenders);
(iii) Incremental Term Loans shall not have a weighted average life to maturity of less than the Term Loans on any Interest Payment Date for the Base Rate Loans;
(iv) the final maturity date of Incremental Term Loans shall not be earlier (but may be later) than the Maturity Date; and
(v) such thatterms shall be reasonably satisfactory to the Administrative Agent.
(e) The Incremental Term Loans and any Revolving Credit Loans made under any Incremental Revolving Commitment shall constitute Obligations and shall, after giving Pro Forma Effect ratably with the Term Loans and Revolving Credit Loans, (i) be secured by and entitled to the benefits of the Loan Documents and the Collateral; and (ii) share on a ratable basis in any prepayments of the Term Loans (unless the Incremental Term Lenders with respect to such Incremental Term Loans agree to receive prepayments after prepayments of the Term Loans).
(f) No Incremental Facility (assuming shall be effective unless the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements Lead Borrower shall have delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall not exceed 3.50 to 1.00; provided that if reasonably be requested by the Administrative Agent in connection with any such transaction. The proceeds of any the Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio Facilities shall only be required to be satisfied on used for Permitted Acquisitions. Notwithstanding the LCT Test Date and (iii) an amount equal to all voluntary prepayments offoregoing, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction no increase in the Revolving Credit Commitments therefor), (or in each case, not made with the proceeds Revolving Credit Commitment of any long-term indebtedness (excludingLender) or tranche of Incremental Term Loans shall become effective under this Section 2.15 unless, for on the avoidance proposed date of doubtthe effectiveness of such increase or Incremental Term Loans, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) the condition set forth in paragraph (to the extent compliant therewithb) before capacity under clauses (ii) or (iii), and capacity under clause (iii) of Section 4.02 shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)satisfied or waived by the Required Lenders, (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in Article V of this Agreement made by the other Loan Documents Borrowers shall be and remain true and correct in all material respects on the effective date and as of such Incremental Facility date as if made on and as of such date (where not already unless such representations or warranties are qualified by materiality, otherwise in which case they shall be true and correct in all respects), except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (where not already unless such representations or warranties are qualified by materiality, otherwise in which case they shall be true and correct in all respects), (iii) as of such earlier date; provided that if the proceeds each of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at representations and warranties made by the election of target in the Borrower, purchase and sale (or equivalent agreement) executed in connection with the foregoing condition in this clause (d) related Permitted Acquisition shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects on and as of such date as if made on and as of such date (without duplication unless such representations or warranties are qualified by materiality, in which case they shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of materiality qualifierssuch earlier date (unless such representations or warranties are qualified by materiality, in which case they shall be true and correct in all respects);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date , and (iiiv) all Revolving Increases shall terminate on the Revolving Credit Termination Increased Facility Closing Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its the Incremental Term Loans and Incremental Revolving Loans each Lender Commitment relating thereto and the consummation of the Permitted Acquisition to be funded with the proceeds thereof, the Consolidated Net Total Leverage Ratio shall have outstanding its Percentage not exceed the lesser of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein (i) 3.5:1.0, or (ii) a ratio equal to the contrarythen-existing Consolidated Net Total Leverage Ratio required by Section 7.11(a), no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityminus 0.25x.
Appears in 1 contract
Incremental Facilities. The Borrower may (aa)(i) add one On or more incremental term loan facilities (an “Incremental Term Facility” prior to the Tranche B Effective Date and solely in connection with the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount consummation of the Revolving Credit Commitments Acquisition, the Borrower may, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent) to the Administrative Agent at least five (5) which notice shall be delivered not less than two Business Days prior to the desired effective date Tranche B Effective Date, unless the Agent shall otherwise agree), request (x) new incremental term loan “B” commitments from some or all of such increase the Initial Lenders (as defined in the Commitment Letter, referred to herein as the “Revolver Tranche B Incremental Lenders”) in an aggregate principal amount not to exceed the Tranche B Incremental Maximum Amount and substantially on the terms and subject to the conditions contemplated by the Commitment Letter, the fee letter referred to therein and with such changes thereof as may be provided for in the Tranche B Incremental Joinder (as defined below) (such new incremental term loan “B” commitments, the “Tranche B Incremental Commitments” and such new incremental term “B” loans thereunder, the “Tranche B Incremental Loans”) and (y) an increase in the Term Advances (which shall be implemented as an increase to the Term Facility and shall have identical terms as the Term Advances) from some or all of the Lenders to become effective as of the Tranche B Effective Date in an aggregate principal amount not to exceed the Term Advance Increase Maximum Amount (such increase, the “Term Advance Increase” and together with any Incremental each Lender, if any, agreeing to participate in the Term FacilitiesAdvance Increase, collectivelyan “Increasing Term Lender”). It is agreed that, upon the “Incremental Facilities”) identifying an additional Lender occurrence of the Tranche B Effective Date, (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(ax) the aggregate amount obligations in respect of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Tranche B Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election and each of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower other Obligations shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), secured and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured guaranteed on a pari passu basis consistent with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties terms set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date Commitment Letter (subject to customary ordering of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except priorities of payments for amounts owing to the extent Agent and the like and other customary priority obligations) by the same expressly relate to an earlier date, in which case they shall be true collateral and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition guarantors and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility any Term Advance Increase shall be agreed upon subject to the same conditions contemplated by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Commitment Letter with respect to the contrary, no Lender shall have any obligation to participate in any Tranche B Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityCommitments.
Appears in 1 contract
Samples: Credit Agreement (Science Applications International Corp)
Incremental Facilities. The Borrower may Subject to the terms and conditions set forth herein, Adtalem shall have the right, from time to time and upon at least ten Business Days’ prior written notice to the Administrative Agent (a) an “Incremental Request”), to request to incur additional term loans under a then existing tranche and/or add one or more incremental additional tranches of term loan facilities loans (“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.14, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility” and ”) and/or increase the loans borrowed thereunder Aggregate Revolving Commitments (the “Incremental Revolving Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “ Incremental Facility Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedsubject, however, thatin any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all such Incremental Facilities Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.16 shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii))250,000,000;
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and subject to Section 1.11 in the case of any an Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the consummation of such Limited Condition Acquisition and the funding incurrence of such Incremental FacilityFacility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and any related transactions, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(c) subject to Section 1.11 in the case of an Incremental Term Facility used to finance a Limited Condition Acquisition, after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Consolidated Leverage Ratio for the most recently completed four fiscal quarter period shall be less than or equal to the maximum then permitted under Section 7.15;
(d) each subject to Section 1.11 in the case of an Incremental Term Facility used to finance a Limited Condition Acquisition, the representations and warranties set forth in Section 6 and in the other Loan Documents Article V shall be and remain true and correct in all material respects on and as of the effective date of on which such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Amendment is to become effective, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all such Incremental Term Facility Loans shall have be in a maturity date no earlier than minimum amount of $25,000,000 (or, if less, the Revolving Credit Termination Date balance of the remaining aggregate principal amount available for all such Incremental Facility Loans) and in integral multiples of $1,000,000 in excess thereof (ii) all Revolving Increases shall terminate on or such lesser amounts as agreed by the Revolving Credit Termination DateAdministrative Agent);
(f) any Incremental Term Facility may permit voluntary Revolving Commitments shall be made on the same terms and customary mandatory prepayments provisions (includingother than upfront fees) as apply to the existing Revolving Commitments, for the avoidance of doubtincluding with respect to maturity date, customary amortization payments, excess cash flow prepaymentsinterest rate and prepayment provisions, and prepayments with debt, asset sale shall not constitute a credit facility separate and casualty insurance proceedsapart from the existing revolving credit facility set forth in Section 2.1(a);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility Loan that constitutes an additional term loan under a then existing tranche of term loans shall be made on the same terms and pursuant provisions (other than upfront fees) as apply to documentation such outstanding term loan, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loan; provided that in the case of an Incremental Term Loan that is an additional advance of any existing tranche of term loans that is subject to a prepayment premium, the expiration date of such prepayment premium as to the full principal amount of such term loan may be extended to a date agreed between the Borrower by Adtalem and the applicable lenders Lenders providing such Incremental Term Facility; provided Loan;
(h) in the case of any Other Term Loan that the Administrative Agent has determined is a term loan A (an “Incremental Tranche A Term Loan”), such terms either Other Term Loan shall: (A) reflect (as determined by rank pari passu in right of payment priority with the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or existing term loans, (B) are share ratably in rights in the Collateral, the U.S Guaranty and the Offshore Guaranty, as applicable and in a manner consistent with the terms of the Loan Documents, (C) have a maturity date that is not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) earlier than the terms under those in later of (1) the Maturity Date with respect to Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by Loans and (2) the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of any other Incremental Tranche A Term Loan, (D) have a Weighted Average Life to Maturity that is not shorter than the Revolving Credit Facility or then-remaining Weighted Average Life to Maturity of any other Incremental Tranche A Term Loan (y) as are incorporated into this Agreement for it being understood that, subject to the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of foregoing, the Incremental Facility amortization schedule applicable to such Other Term Loan shall be agreed upon determined by the Borrower Adtalem and the Lenders providing the Incremental Facility. Upon the effectiveness thereofof such Other Term Loan), Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing LenderE) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate share ratably in any mandatory prepayments of the Term B Loan and any other Incremental Facility Term Facilities pursuant to Section 2.5 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term B Loan and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Term Facilities) and
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” Subject to the terms and conditions set forth herein, after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Closing Date, the aggregate amount of Borrower shall have the Revolving Credit Commitments right to request, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less one or more additional Classes of term loans or additional term loans of the aggregate principal amount same Class of any existing Class of term loans (the "Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iTerm Loans"), (ii) an one or more increases in the amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming of the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds Commitments of any Class (each such increase, an "Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on Revolving Commitment Increase" and, together with the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, the "Incremental Equivalent Debt Facilities" and Revolving Loans (the commitments in respect thereof are referred to as the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor"Incremental Commitments"), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood ; provided that (Ix) subject to Section 1.14, at the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from time that any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Loan or Incremental Revolving Loans, Commitment Increase is made or may be unsecured;
effected (c) immediately prior to and after giving pro forma effect to such Incremental Facilitythereto), no Event of Default shall have occurred and be continuing; provided .
(b) Each tranche of Incremental Term Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and the Incremental Term Loans and the Incremental Revolving Commitment Increases (in each case after giving pro forma effect thereto and the use of the proceeds of thereof) Incurred pursuant to this Section 2.15(b) shall not exceed the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;Limit.
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all The Incremental Term Loans (A) shall rank equal in right of security with the Initial Term Loans (and which may be equal or junior in right of payment with the Initial Term Loans), shall be secured on a pari passu basis only by all or a portion of the Collateral securing the Obligations and shall be guaranteed only by the Credit Parties, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
subject to clause (f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments B)), an amortization schedule (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepaymentssubject to clause (C)), and prepayments with debtinterest rates (including through fixed interest rates or payment-in-kind interest), asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16pricing, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discountdelayed draw mechanics, interest ratesmargins, rate floors, spread adjustmentsupfront fees, call premiumsAHYDO Catch Up Payments, funding discounts, original issue discounts and optional prepayment terms and mandatory prepayment and redemption terms) than premiums for the terms under those in the Revolving Credit Facility when taken Incremental Term Loans as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent lenders of the Incremental Term Loans; provided that, solely with respect to broadly syndicated floating rate Incremental Term Loans that mature no later than one year after the Initial Term Loan Maturity Date, if the Effective Yield for such Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 50 basis points, then the interest margins for all Initial Term Loans will be increased to the extent necessary such that the Effective Yield for such Incremental Term Loan is not more than 50 basis points higher than the Effective Yield for the Initial Term Loans, (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except with respect to matters contemplated by clauses (B), (C), (D) and (E) above (except for covenants or and other provisions (x) or requirements applicable only to the periods after the latest final maturity Latest Maturity Date), any differences shall not be materially more restrictive on the Borrower and its Restricted Subsidiaries than the terms of the Revolving Credit Facility or this Agreement, when taken as a whole and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as are incorporated into the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of all existing Lenders each Facility.
(which ii) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be accomplished increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Commitment Increase (without further amendment voting requirementsany requirement to pay such fees to any existing Revolving Lenders)). The effective date .
(d) Each notice from the Borrower pursuant to this Section 2.15 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Facility shall Term Loans or Incremental Revolving Commitment Increases. Incremental Term Loans may be agreed upon by made and Incremental Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof(not to be unreasonably withheld or delayed), Schedule 2.2 shall be deemed amended to reflect by any Revolver Increase and the new existing Lender (orit being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a portion of any Incremental Term Loan, if applicable, and no existing Lender) shall advance Lender with a Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall Commitment will have any obligation to participate provide a portion of any Incremental Revolving Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an "Additional Lender"); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender's or Additional Lender's making such Incremental Term Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 12.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Commitment Increases, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender's or Additional Lender's providing such Incremental Revolving Commitment Increases if such consent would be required under Section 12.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments in respect of Incremental Term Loans and Incremental Revolving Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender's applicable Revolving Commitment) under this Agreement pursuant to an amendment (an "Incremental Agreement") to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, and each Additional Lender, if any, so long as any Additional Lender shall have complied with the provisions of Section 12.04(c) and delivered such forms to the Administrative Agent, and acknowledged by the Administrative Agent (such acknowledgement not to be unreasonably withheld or delayed). The Incremental Agreement may, subject to Section 2.15(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including (i) in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders, (ii) [reserved], (iii) to increase the Effective Yield of the applicable Class of Term Loans, or make other changes to any applicable Class of Term Loans that are favorable to the Lenders thereof, to the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are "fungible" with any applicable existing Class of Term Loans) and/or (iv) to add or extend, in either case, any other "call protection" for the benefit of any applicable existing Class of Term Loans). The effectiveness of any Incremental Agreement (an "Incremental Facility Closing Date") and the occurrence of any Credit Event pursuant to such Incremental Agreement shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(i) No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitment Increases unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans or Incremental Revolving Commitment Increases.
(ii) Upon each increase in the Revolving Commitments of any Class pursuant to this Section 2.15, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each, an "Incremental Revolving Commitment Increase Lender") in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx's participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Xxxxxx's Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.02. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(g) This Section 2.15 shall supersede any provisions in Section 2.10 or 12.10 to the contrary. For the avoidance of doubt, any provisions of this Section 2.15 may be amended with the consent of the Required Lenders; provided no such amendment shall effect any change specifically described in clauses (i) through (x) of Section 12.10 without the consent of each Person required to consent to such change under clauses (i) through (x) of Section 12.10 (it being agreed, however, that (x) the establishment and implementation of any Incremental Facility will not, of itself, be deemed to effect any of the changes described in clauses (i) through (x) of Section 12.10 and no Lender’s Revolving Credit Commitment shall (y) modifications to the definitions of "Commitment", "Loan", any constituent definitions of the foregoing, "Required Lenders", "Required Class Lenders" or other provisions relating to voting provisions to provide the Persons agreeing to provide the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline deemed to participate effect any of the changes described in any Incremental Facilityclauses (i) through (x) of Section 12.10).
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrower may, at any time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Effective Date but prior to the aggregate amount Termination Date in respect of the Revolving Credit Commitments applicable Facility, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable written notice to the Administrative Agent, request an increase in the Revolving Credit Facility or the Term Facility (each such facility increase being a "FACILITY INCREASE") in an aggregate principal amount not to exceed $75,000,000 for all Facility Increases, each of which to be effective as of a date that is at least 90 days prior to the scheduled Termination Date then in effect in respect of the applicable Facility (for each such Facility Increase, the "INCREASE DATE") as specified in the related notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)Agent; provided, however, that:
that (ai) in no event shall any Facility Increase be in a principal amount of less than $15,000,000 (or such lesser amount as shall be approved by the Administrative Agent) nor shall the aggregate amount of all such Incremental Facilities shall not Facility Increases exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), 75,000,000; (ii) an amount there shall be no more than four (4) Facility Increases (or such thatgreater number as shall be approved by the Administrative Agent); (iii) on the Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.17 shall be satisfied; (iv) on the Increase Date, after giving Pro Forma Effect pro forma effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded)Increase, the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause in pro forma compliance with all financial covenants set forth in Section 5.04; (iv) (to on the extent compliant therewith) before capacity under clauses (ii) or (iii)Increase Date, and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving pro forma effect to such Incremental FacilityFacility Increase, no Event of Default shall have occurred and be continuing; (vi) any Facility Increase shall have a termination date that is no earlier than the Termination Date in respect of the applicable Facility (but may have nominal amortization prior to such Termination Date so long as the Weighted Average Life to Maturity of such increase is no shorter than the weighted average life to maturity of the then-remaining Advances under the applicable Facility); (vii) any Facility Increase will accrue interest at rates determined by the Borrower and the lenders providing such Facility Increase, which rates may be higher or lower than the rates applicable to the Revolving Credit or Term Advances, as applicable, (provided that if the proceeds Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Facility Increase) relating to any Facility Increase exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Revolving Credit or Term Advances, as applicable) relating to the Revolving Credit or Term Advances, as applicable, by more than 0.25%, the Applicable Margin relating to the applicable Advances shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Facility Increase) relating to such Facility Increase minus 0.25%); (viii) except as set forth in clause (vi) or (vii) above, any Facility Increase shall be on terms identical to the existing applicable Facility; (ix) the existing Lenders shall initially have the right, but not the obligation, to commit to up to their Pro Rata Share (or, if consented to by the Borrower and the Administrative Agent to cover declines by other Lenders, more than their Pro Rata Share) of a Facility Increase ratably based on the applicable Term Commitments of the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionTerm Lenders and Revolving Credit Commitments of the Revolving Credit Lenders; and (x) notwithstanding any other provision of any Loan Document (including, then at without limitation, Section 9.01), the election of Loan Documents may be amended by the Administrative Agent and the Borrower, if necessary, without the foregoing condition consent of any Lender), to provide for terms applicable to each Facility Increase consistent with the terms hereof.
(b) The Administrative Agent shall promptly notify the Term Lenders or Revolving Credit Lenders, as applicable, of a request by the Borrower for a Facility Increase in this clause respect of the Term Facility or Revolving Credit Facility, which notice shall include (i) the proposed amount of such requested Facility Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders wishing to participate in such Facility Increase must commit to an increase in the amount of their respective Commitments (the "COMMITMENT DATE"). Each Term Lender or Revolving Credit Lender, as appropriate, that is willing to participate in the requested Facility Increase (each an "INCREASING LENDER") shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Commitment. If the Increasing Lenders notify the Administrative Agent that they are willing to participate in a Facility Increase by an aggregate amount that exceeds the amount of the requested Facility Increase, the requested Facility Increase shall be allocated among the Increasing Lenders in such amounts as are agreed between the Borrower and the Administrative Agent.
(c) Promptly following the applicable Commitment Date, the Administrative Agent shall only notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Facility Increase. If the aggregate amount by which the Increasing Lenders are willing to participate in the requested Facility Increase on any such Commitment Date is less than the requested Facility Increase, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the requested Facility Increase that has not been committed to by the Increasing Lenders as of the Commitment Date.
(d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Facility Increase in accordance with Section 2.17(c) (each such Eligible Assignee, an "ASSUMING LENDER") shall become a Lender party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Facility Increase shall be required so increased by the amount by which such Increasing Lender is willing to be satisfied on increase its applicable commitment (or by the LCT Test amount allocated to such Lender pursuant to the last sentence of Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the date Increase Date the following, each dated such date:
(i) certified copies of resolutions of the consummation Board of such Limited Condition Acquisition Directors (or other analogous governing body) of the Borrower approving the applicable Facility Increase and the funding corresponding modifications to this Agreement and an opinion of such Incremental Facility, no Event of Default under Section 9.01(acounsel for the Borrower (which may be in-house counsel), (j) addressing the due execution, authorization, delivery and enforceability of the documents evidencing such Facility Increase and the absence of any violation of constitutive documents or (k) hereof shall have occurred and be continuingof applicable law or material contracts binding upon the Borrower, in a form reasonably satisfactory to the Administrative Agent;
(dii) an assumption agreement from each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materialityAssuming Lender, otherwise in all respects), except to the extent the same expressly relate to an earlier dateif any, in which case they shall be true form and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently substance satisfactory to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions each an "ASSUMPTION AGREEMENT"), duly executed by such Assuming Lender, the Administrative Agent and the Borrower; and
(xiii) applicable only to periods after the latest final maturity confirmation from each Increasing Lender of the Revolving Credit Facility or (y) as are incorporated into this Agreement for increase in the benefit amount of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by its Commitment in a writing satisfactory to the Borrower and the Administrative Agent. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.17(d), the Administrative Agent shall notify the Lenders providing the Incremental Facility. Upon the effectiveness thereof(including, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase without limitation, each Assuming Lender) and the new Borrower, on or before 11:00 A.M. (Charlotte, North Carolina time), by telecopier, of the occurrence of the applicable Facility Increase to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Assuming Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityon such date.
Appears in 1 contract
Incremental Facilities. The Borrower This Agreement and the other Loan Documents may (a) be amended at any time after the Closing Date to add one or more incremental tranches of term loan facilities loans (each an “Incremental Term Facility” and ”) and/or increase the loans borrowed thereunder Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term LoansFacility and each Incremental Revolving Increase is an “Incremental Facility”) or (b) increase ), at the aggregate amount option of the Revolving Credit Commitments Borrower by delivering an Increase Request substantially agreement in writing entered into by the form attached hereto as Exhibit I (or in such other form reasonably acceptable to Borrower, the Administrative Agent) to Guarantors, the Administrative Agent at least five and each Person (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with including any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount that agrees to provide a portion of its Revolving Credit Commitment such Incremental Facility (or additional amount of its Revolving Credit Commitmenteach, an “Incremental Facility Amendment”); provided, however, provided that:
(a) except in the aggregate amount case of all such Incremental Facilities shall a Copper Acquisition Facility (as to which this clause (a) does not exceed the sum of (i) $300,000,000 less apply), the aggregate principal amount of all Incremental Equivalent Debt issued, Facilities incurred after the Sixth Amendment Effective Date (which for the avoidance of doubt shall not include the Additional Term Loan Advance or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increaseany Copper Acquisition Facility) shall not exceed 3.50 to 1.00; provided that if the proceeds of (i) $150 million plus (ii) any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing additional amount (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich, for the avoidance of doubt, Revolving Loans) (it being understood that (I) may be incurred prior to the Borrower shall be deemed to have used capacity under amount described in clause (i)) (to so long as, in the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series case of related transactions by first calculating the incurrence under this clause (ii) and then calculating only, after giving effect to the incurrence under clause of such Incremental Facility (iii))and the use of proceeds thereof) on a Pro Forma Basis the Consolidated Senior Secured Leverage Ratio recomputed as of the end of (A) in the case of an Incremental Facility the proceeds of which are used to finance a Limited Condition Acquisition, the four fiscal quarter period for the applicable Limited Condition Testing Period and (B) in all other cases, the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) would not exceed 3.50:1.0; provided, that for purposes of such calculation, cash proceeds of such Incremental Facility shall not be netted from Consolidated Funded Indebtedness;
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and except in the case of any a Copper Acquisition Facility (as to which this clause (b) does not apply), no Default shall exist on the effective date of such Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and would exist after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if in the case of an Incremental Facility the proceeds of the Incremental Facility which are used substantially concurrently to finance a Limited Condition Acquisition, then at such requirement shall be (i) tested on the election Limited Condition Testing Date and (ii) subject to Section 5.02 on the effective date of such Incremental Facility;
(c) except in the Borrower, the foregoing condition in case of a Copper Acquisition Facility (as to which this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(adoes not apply), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth of each Loan Party contained in Section 6 and in the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be and remain true and correct in all material respects on and as of the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Facility, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; , provided that if the proceeds of the Incremental Facility are used substantially concurrently with respect to finance a Limited Condition Acquisition, then at such requirement shall be (i) tested on the election Limited Condition Testing Date and (ii) subject to Section 5.02 on the effective date of such Incremental Facility;
(d) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) except in the case of a Copper Acquisition Facility (as to which this clause (B) does not apply), in the case of the Borrower, certifying that the foregoing condition conditions set forth in Sections 2.16(b) and (c) are true and correct as of such date specified therein;
(ii) except in the case of a Copper Acquisition Facility (as to which this clause (dii) shall only does not apply) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility, provided that, in the case of a Limited Condition Acquisition, amendments to the Collateral Documents may be required to be satisfied on delivered within 90 days after the LCT Test Date; provided, however, that on the date of the consummation closing of such Limited Condition Acquisition (or such longer period as the Administrative Agent may agree in its sole discretion); and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and the funding each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except in the case of a Copper Acquisition Facility (as otherwise provided to which this clause (g) does not apply), in this the case of an Incremental Facility the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility (and the use of proceeds thereof) on a Pro Forma Basis the Loan Parties would be in compliance with the financial covenants set forth in Section 2.168.11 recomputed as of the end of (i) in the case of a Limited Condition Acquisition, any the period of four fiscal quarters for the applicable Limited Condition Testing Date and (ii) in all other cases, the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b);
(h) in the case of an Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing Administrative Agent shall have mutually agreed whether such Incremental Term Facility is a term loan A (an “Incremental Tranche A Term Facility; provided that ”) or a term loan B (an “Incremental Tranche B Term Facility”);
(i) in the case of an Incremental Tranche A Term Facility:
(i) the final maturity date for such terms either Incremental Tranche A Term Facility shall not be earlier than the latest maturity date of any other Tranche A Term Facilities and shall not be later than the earliest maturity date of any Tranche B Term Facility;
(Aii) reflect the Weighted Average Life for such Incremental Tranche A Term Facility shall not be shorter than the then remaining Weighted Average Life of any other Tranche A Term Facility and shall not be longer than the remaining Weighted Average Life of any Tranche B Term Facility;
(iii) if the All-In Yield on such Incremental Tranche A Term Facility exceeds the All-In Yield on any outstanding Tranche A Term Facility by more than 50 basis points (0.50%) per annum, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche A Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche A Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche A Term Facility (such increase to be allocated among such outstanding Tranche A Term Facility as reasonably determined by the Borrower in good faith and the Administrative Agent acting reasonablyin consultation with the Borrower);
(iv) market subject to the foregoing clauses, the other terms and conditions of such Incremental Tranche A Term Facility (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding including interest rate, interest rate margins, interest rate floors, fees, original issue discount, interest ratescall protection or prepayment penalty, rate floors, spread adjustments, call premiums, amortization and optional final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Tranche A Term Facility and approved by the Administrative Agent; and
(v) such Incremental Tranche A Term Facility shall share ratably in any mandatory prepayments of the other Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and redemption termsshall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities);
(j) in the case of an Incremental Tranche B Term Facility:
(i) the final maturity of such Incremental Tranche B Term Facility shall not be earlier than the terms under those in final maturity date of any other Term Facility;
(ii) the Revolving Credit Weighted Average Life of such Incremental Tranche B Term Facility when taken as a whole andshall not be shorter than the then remaining Weighted Average Life of any other Term Facility;
(iii) if the All-In Yield on such Incremental Tranche B Term Facility exceeds the All-In Yield on any outstanding Tranche B Term Facility by more than 50 basis points (0.50%) per annum, in each case, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche B Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche B Term Facility (such increase to be allocated among such outstanding Tranche B Term Facility as reasonably determined by the Borrower and the Administrative Agent in consultation with the Borrower);
(except for covenants iv) subject to the foregoing clauses, the other terms of such Incremental Tranche B Term Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or other provisions (x) applicable only to periods after the latest prepayment penalty, amortization and final maturity of the Revolving Credit Facility or (ydate) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be as agreed upon by the Borrower and the Lenders Persons providing such Incremental Tranche B Term Facility and approved by the Administrative Agent; and
(v) such Incremental Facility. Upon Tranche B Term Facility shall share ratably in any mandatory prepayments of the effectiveness thereofother Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities);
(k) in the case of any Incremental Revolving Increase:
(i) if any Revolving Loans are outstanding on the date of such increase, Schedule 2.2 (x) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, the proceeds of which shall be deemed amended applied by the Administrative Agent to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance prepay Revolving Loans of the existing Lenders, in an amount sufficient necessary such that after giving effect to its thereto the outstanding Revolving Loans each Lender are held ratably among all of the Lenders with a Revolving Commitment and (y) the Borrower shall have outstanding its Percentage pay an amount required pursuant to Section 3.05 as a result of all any such prepayment of Revolving Loans outstanding under of existing Lenders; and
(ii) such Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Aggregate Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any The Incremental Facility Commitments and no Lender’s Revolving credit extensions thereunder shall constitute Commitments and Credit Commitment Extensions under, and shall be increased without its consent theretoentitled to all the benefits afforded by, this Agreement and the other Loan Documents, and each Lender may at its optionshall, unconditionally without limiting the foregoing, benefit equally and without cause, decline to participate in any Incremental Facilityratably from the Guarantees and security interests created by the Collateral Documents.
Appears in 1 contract
Incremental Facilities. The Facilities Documentation will permit the Borrower may (a) after the Closing Date to add one or more incremental term loan facilities to the Credit Facilities (each, an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) and/or increase the aggregate amount of commitments under the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I Facility (or in any such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the increase, and “Revolver Incremental Revolving Increase” and ”; together with any the Incremental Term Facilities, collectively, and collectively referred to as the “Incremental Facilities”) identifying in an additional Lender aggregate amount (or additional Revolving Credit Commitment for an existing Lenderthe “Available Incremental Amount”) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
up to (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such thatequal to $300.0 million, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or plus (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt Loans and voluntary prepayments of Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), commitments thereof (in each case, to the extent not made financed with the proceeds from the incurrence of any long-term indebtedness indebtedness), plus (excludingc) an unlimited amount, for so long as after giving effect to the avoidance of doubtborrowings under such Incremental Facility on the effective date thereof on a pro forma basis (as defined below), the Consolidated Net Leverage Ratio is equal to or less than 3.00:1.00 (assuming that any Incremental Revolving Loans) (Increase is fully drawn and it being understood that (I) cash proceeds of any such Incremental Facility shall not be netted for the Borrower purpose of testing such Consolidated Net Leverage Ratio). The availability of the Incremental Facilities shall be deemed subject solely to the following terms and conditions: (a) no existing Lender shall be required to participate in any such Incremental Facility without its consent; (b) no default or event of default under the Credit Facilities shall have used capacity occurred and be continuing or would exist immediately after giving effect thereto (except in connection with permitted acquisitions or investments, which shall be subject to no payment or bankruptcy event of default under clause the Credit Facilities); (c) such Incremental Facility may, at the discretion of the Borrower, (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and with the Credit Facilities, (ii) be subordinated in right of payment to the Credit Facilities, (iii) be secured on a pari passu basis with the Revolving LoansCredit Facilities, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and (iv) be secured on a junior lien basis with to the Revolving Loans, Credit Facilities or may (v) be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if subordinated or secured on a junior lien basis (except to the proceeds extent incurred under the Facilities Documentation (as defined below)), any intercreditor or lien subordination arrangements shall be reasonably satisfactory to the Administrative Agent, and if secured on an equal basis with the Credit Facilities, such Incremental Facilities shall be on terms and pursuant to documentation applicable to the Credit Facilities; (d) the maturity date of any such Incremental Term Facility shall be no earlier than the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the latest maturity date of the consummation Term Facilities or, if the Incremental Term Facility is structured as a “Term A” facility, the latest maturity date of the Term Loan A Facility; (e) the weighted average life to maturity of any such Limited Condition Acquisition and Incremental Term Facility shall be no shorter than the funding then remaining weighted average life to maturity of the Term Loans or, if the Incremental Term Facility is structured as a “Term A” facility, the then remaining weighted average life to maturity of the Term Loan A Facility; (f) in the case of an Incremental Revolving Increase, the maturity date of such Incremental Revolving Increase shall be the same as the maturity date of the Revolving Credit Facility, such Incremental Revolving Increase shall require no Event scheduled amortization of Default under Section 9.01(a)mandatory commitment reduction prior to the final maturity of the Revolving Credit Facility and the Incremental Revolving Increase shall be on the same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (jg) or (k) hereof shall have occurred and be continuing;
subject to clauses (d) each of and (e) above, the amortization schedules applicable to any such Incremental Term Facility shall be as determined by the Borrower and the lenders thereunder; (h) the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they Facilities Documentation shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as immediately after giving effect to the incurrence of such earlier date; provided that if Incremental Term Facility, subject to “SunGard” provisions substantially identical to the Certain Funds Provisions to the extent the proceeds of the such Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionfinance, then at the election of the Borrowerin whole or in part, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Datepermitted acquisitions or investments; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all any fees payable in connection with such Incremental Term Loans Facility shall have a maturity date no earlier than be determined by the Revolving Credit Termination Date Borrower and the arrangers and/or lenders providing such Incremental Facility; (iij) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any such Incremental Term Facility may permit provide for the ability to participate on a pro rata basis or less than pro rata basis in any voluntary and customary or mandatory prepayments of the Term Loans; (includingk) during the period commencing on the Closing Date and ending on the date that is 12 months after the Closing Date only, the interest rate, upfront fees and original issue discount for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any term loan xxxxxx such Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between as determinedby the Borrower and the applicable lenders providing such Incremental Term Facility; provided that in the event that the yield on such terms either Incremental Term Facility (A) reflect taking into account interest margins, minimum Adjusted LIBOR (as defined in Annex I to Exhibit B), minimum ABR, upfront fees and OID on such term loans, with upfront fees and OID being equated to interest margins based on an assumed four year life to maturity, but exclusive of any arrangement, syndication, structuring, commitment or other fees payable in connection therewith) (the “Incremental Yield”) (other than any Incremental Term Facility that is unsecured, subordinated or secured on a junior-lien basis) exceeds the yield on the Term Loan B Facility or, if the Incremental Term Facility is structured as a “Term A” facility, the Term Loan A Facility (determined as provided above), by more than 0.50% per annum, then the interest margins for the Term B Loans and/or the Term A Loans, as applicable, shall automatically be increased to a level such that the yield on the Term B Loans and/or the Term A Loans, as applicable, shall be 0.50% below the Incremental Yield (it being agreed that any increase in yield to any existing facility required due to the application of an Adjusted LIBOR or ABR “floor” on any Incremental Term Facility shall be effected solely through an increase therein (or implementation thereof, as applicable); and (l) except as otherwise provided above, all other terms of such Incremental Term Facility, if not consistent with the terms of the existing Term Facilities, will be as agreed between the Borrower and the lenders providing such Incremental Term Facilities, with such other terms not consistent with the existing Term Facilities to be reasonably satisfactory to the Administrative Agent. The Borrower may seek commitments in respect of the Incremental Facilities from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection therewith; provided that the consent of the Administrative Agent, the Swing Line Lender and the Issuing Banks (not to be unreasonably withheld, delayed or conditioned) shall be required with respect to any such additional lender if such consent would be required under the caption “Assignments and Participations” for an assignment to such additional lender. The proceeds of the Incremental Facilities will be used for general corporate purposes of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, restricted payments, refinancing of Indebtedness and any other transaction not prohibited by the Borrower in good faith and Facilities Documentation). The Facilities Documentation shall be amended to give effect to any Incremental Facility by documentation executed by the Lenders making the commitments with respect thereto, the Administrative Agent acting reasonably) market and the Borrower and without the consent of any other existing Lender. The Facilities Documentation will also permit amendments thereof with the consent of only the Administrative Agent and the Borrower to permit extensions of credit under the Incremental Facilities and the accrued interest and fees in respect thereof to share in the benefits of the Facilities Documentation and to include the Lenders holding such facilities in the definition of Required Lenders and Majority Facility Lenders. In addition, the Borrower may, in lieu of adding Incremental Term Facilities, utilize any part of the Available Incremental Amount at any time by issuing or incurring Incremental Equivalent Term Debt, subject to customary terms and conditions (taken such as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as customary intercreditor documentation reasonably determined by the Borrower and acceptable to the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (orAgent, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility).
Appears in 1 contract
Samples: Joinder Agreement to Commitment Letter (PMC Sierra Inc)
Incremental Facilities. (a) The Parent Borrower may from time to time, pursuant to an Incremental Facility Amendment (ai) add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Facility or Class (any such new Class or increase, an “Incremental Term Facility” and the any loans borrowed thereunder made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) increase the aggregate amount of the Revolving Credit Commitments by delivering (any such increase, an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and Incremental Revolving Facility”, together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
that (ai) the aggregate principal amount of all such Incremental Facilities established on any date after the Sixth Amendment Effective Date shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iiix) an amount equal to all voluntary prepayments ofthe Base Incremental Amount on such date, repurchases and/or cancellations plus (in y) an additional amount equal to the actual Voluntary Prepayment Amount on such date plus (z) an additional amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, equal to the extent accompanied by a permanent reduction Maximum Incremental Ratio Amount as of such date (the sum of the amounts in the Revolving Credit Commitments thereforclauses (x), in each case(y) and (z), not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans“Incremental Availability Amount”) (it being understood that (IA) the applicable Borrower shall be deemed to have used capacity utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (ix) (to the extent compliant therewith) before capacity under clauses (ii) or (iii)above, and capacity under clause (iii) if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to be used before capacity under have elected clause (i) and (II) loans may be incurred under clauses (iz), (iiB) and (iii), and the proceeds from any such incurrence under such clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause clauses (iiy) and/or (z) above and then calculating the incurrence under clause (iii));
x) above (bit being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified), (ii) unless otherwise agreed by the Administrative Agent, each Incremental Facilities Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the Loans in respect of any Incremental Facility and related guarantees may rank pari passu all obligations in right of payment respect thereof shall be Obligations under this Agreement and be secured the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the Revolving Loansother Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Facility and all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the 85
(b) Commitments and Loans in respect of any Incremental Facility may be provided by any existing Lender or by any other Eligible Assignee that is a New Lender; provided that, and the Administrative Agent (and, in the case of any Incremental Term Revolving Facility, the Swingline Lender and any Issuing Lender) shall have a right to consent to the relevant Incremental Lender’s provision of such Incremental Facility onlyif such consent would be required under Section 10.6 for an assignment of Loans or Commitments to such Incremental Lender (in each case, may also rank junior in right such consent not to be unreasonably withheld, conditioned or delayed); provided, further, pursuant to the applicable Assignment and Assumption or Incremental Facility Amendment, such New Lender shall agree to become a “Lender” for all purposes of payment this Agreement and the other Loan Documents and to the same extent as if originally a party hereto and be secured on bound by, and entitled to the benefits of, this Agreement in its capacity as a junior basis with the Revolving Loans, or may be unsecured;Lender. 86
(c) immediately prior Upon the effectiveness of any increase in the aggregate amount of the Revolving Commitments pursuant to and after giving this Section 2.24, (A) the Revolving Percentages of the Revolving Lenders shall be automatically adjusted to give effect to such increase, provided that the amount of each Lender’s Revolving Commitments (other than a Lender that has agreed to participate in such increase and whose Revolving Commitments shall have been increased in connection with such increase) shall remain unchanged and (B) the Borrowers, the Administrative Agent and the Revolving Lenders will assign and assume outstanding Revolving Loans of the affected category to conform the respective amounts thereof held by each Revolving Lender to the Revolving Percentages as so adjusted.
(d) Each Incremental Facility Amendment may, without the consent of any Lender (other than the applicable Lenders providing the relevant Incremental Facility) 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 give effect to the provisions of this Section 2.24. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any other amendment to this Agreement or any other Loan Document as may be necessary or appropriate in order to establish any new Class or any increase in any Classes in respect of Loans and/or Commitments in respect of the Incremental Facilities pursuant to this Section 2.24 (including, for instance, to increase the amortization of any existing Class of Term Loans and/or extending the time period during which any prepayment premium applies in order to have such existing Class of Term Loans be “fungible” with any Incremental Term Loan that is to be added to such Loans) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Parent Borrower in connection with the establishment of such new Class or any such increase. Notwithstanding anything to the contrary, this Section 2.24 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
(e) In each case subject to Section 1.3, it shall be a condition precedent to the availability of such Incremental Facility that (i) no Event of Default shall have occurred and be continuing; provided that if (or, in the proceeds case of the any Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Term Facility, no Event of Default under Section 9.01(a), clauses (ja) or (kf) hereof of Section 8) shall have occurred and be continuing;
continuing immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility, (dii) each of solely to the extent required by the Lenders providing such Incremental Facility, the representations and warranties set forth in Section 6 and each Loan Document (or, in the other Loan Documents case of any Incremental Acquisition Term Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already or, if qualified by materiality, otherwise in all respects)) on and as of the Incremental Closing Date immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility, except to the extent the same expressly relate to made as of an earlier date, in which case they shall be so true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if date and (iii) solely to the proceeds of extent required by the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of Lenders providing such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations Loan Parties shall have to be true delivered such certificates and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments other documents (including, for to the avoidance of doubtextent requested, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(glegal opinions) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing reasonably requested by such Lenders in connection with such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by equivalent to comparable documents delivered on the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityClosing Date.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities At any time during the period from and after the Covenant Conversion Date, at the option of Borrower (an “Incremental Term Facility” and but subject to the loans borrowed thereunder “Incremental Term Loans”) or conditions set forth in clause (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully fundedbelow), the Total Leverage Ratio Term Loan may be increased by an amount in the aggregate for all such increases of the Term Loan not to exceed the Available Increase Amount (calculated on each such increase, an "Increase"). Agent shall invite each Lender to increase its Pro Rata Share of the Term Loan (it being understood that no Lender shall be obligated to increase its Pro Rata Share of the Term Loan) in connection with a proposed Increase at the interest margin proposed by Borrower, and if sufficient Lenders do not agree to increase their Pro Forma Basis based on Rata Share of the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to Term Loan in connection with such Revolver proposed Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio Agent or Borrower may invite any prospective lender who is reasonably satisfactory to Agent and Borrower to become a Lender in connection with a proposed Increase. Any Increase shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal of at least $3,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Term Loan be increased pursuant to the actual amount so repaid, repurchased and/or canceledthis Section 2.14 on more than two (2) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (occasions in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingaggregate for all such Increases. Additionally, for the avoidance of doubt, Revolving Loansit is understood and agreed that in no event shall the aggregate amount of Increases to the Term Loan exceed $15,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Term Loan and the making of the additional portion of the Term Loan (each, an "Additional Portion of the Term Loan" and collectively, the "Additional Portions of the Term Loan") in connection therewith:
(i) Agent or Borrower have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the applicable Increase and any such Lenders (or prospective lenders), Borrower, and Agent have signed a joinder agreement to this Agreement (an "Increase Joinder"), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrower, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrower shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(iv) Borrower has delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing (A) that on a pro forma basis after giving effect to the applicable Increase, the Leverage Ratio of the Loan Parties and their Subsidiaries as of the end of the month most recently ended as to which financial statements were required to be delivered pursuant to this Agreement was at least 0.25 less than the maximum Leverage Ratio permitted pursuant to Section 7(d) for such fiscal quarter, and (B) compliance on a pro forma basis with Section 7 for the twelve months (on a quarter-by-quarter basis) immediately following the proposed date of the applicable Increase, and
(v) Borrowers shall have reached agreement with the Lenders (or prospective lenders) making the Additional Portion of the Term Loan with respect to the interest margins applicable to the Additional Portion of the Term Loan (which interest margins may be higher than or equal to the interest margins applicable to the Term Loan set forth in this Agreement immediately prior to the date of the making of such Additional Portion of the Term Loan, as applicable (the date of the effectiveness of the making of such Additional Portion of the Term Loan, as applicable, the "Increase Date")) and shall have communicated the amount of such interest margins to Agent. Any Increase Joinder may, with the consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the Additional Portion of the Term Loan). Anything to the contrary contained herein notwithstanding, if the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Additional Portion of the Term Loan) that is to be applicable to the Additional Portion of the Term Loan is higher than the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Increase the Additional Portion of the Term Loan) applicable to the Term Loan hereunder immediately prior to the applicable Increase Date (the amount by which all-in yield is higher, the "Excess"), then the interest margin applicable to the Term Loan immediately prior to the Increase Date shall be increased by the amount of the Excess effective on the applicable Increase Date, and without the necessity of any action by any party hereto.
(c) Anything to the contrary contained herein notwithstanding, each Additional Portion of the Term Loan shall be repaid in installments on the following dates and in the following amounts (it being understood and agreed that (I) only such installment payments arising after such Additional Portion of the Borrower Term Loan is made shall be deemed required to have used capacity under clause be paid, but such installment payments shall be in addition to the payments required to be paid pursuant to Section 2.2): The outstanding unpaid principal balance and all accrued and unpaid interest on such Additional Portion of the Term Loan shall be due and payable on the earlier of (i) (to the extent compliant therewith) before capacity under clauses Maturity Date, and (ii) or the date of the acceleration of the Term Loan in accordance with the terms hereof.
(iii)d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to the Term Loan shall be deemed, unless the context otherwise requires, to include any Additional Portion of the Term Loan made pursuant to Increases to the Term Loan pursuant to this Section 2.14.
(e) The Term Loan and Increases to the Term Loan established pursuant to this Section 2.14 shall constitute the Term Loan under, and capacity under clause (iii) shall be deemed entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrower shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be used before capacity perfected under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from the Code or otherwise after giving effect to the establishment of any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating new Increases to the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;Loan.
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds Section 7 of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition Credit Agreement is hereby amended and restated in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) its entirety as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.follows:
Appears in 1 contract
Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, from time to time and upon at least ten (a10) Business Days’ prior written notice to the Administrative Agent (an “Incremental Request”), to request to incur additional term loans under a then-existing tranche of Term Loans and/or add one or more incremental additional tranches of term loan facilities loans (“Other Term Loans” and, together with any additional term loans under a then-existing tranche incurred pursuant to this Section 2.16, the “Incremental Term Loans”; and any credit facility providing for any Incremental Term Loans being referred to as an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) and/or increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase Facility (the “Revolver Increase” Incremental Revolving Commitments”; and together with any Incremental Term Facilities, collectivelyrevolving loans made thereunder, the “Incremental FacilitiesRevolving Loans”); the Incremental Revolving Commitments, together with the Incremental Term Loans, are referred to herein as an “Incremental Facility”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedsubject, however, thatin any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all such Incremental Facilities Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.16 shall not exceed the sum Incremental Cap;
(b) subject to Section 1.09, on the date on which any Incremental Facility Amendment is to become effective, both immediately at the time of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, and immediately after giving Pro Forma Effect effect to the incurrence of such Incremental Facility (assuming that the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an full amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (cshall have been funded on such date) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facilityany related transactions, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(c) subject to Section 1.09, after giving effect to the incurrence of such Incremental Facility (assuming the full amount of the Incremental Facility has been funded) and any related transactions or other transactions occurring on the date thereof on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.11;
(d) each of subject to Section 1.09, the representations and warranties set forth in Section 6 and in the other Loan Documents Article V shall be and remain true and correct in all material respects (or, if any such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the effective date of on which such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Amendment is to become effective, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case case, they shall be true and correct in all material respects (where not already or, if any such representation and warranty is qualified by materialitymateriality or Material Adverse Effect, otherwise it shall be true and correct in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all such Incremental Term Loans Facility shall have be in a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Dateminimum amount of $25,000,000;
(f) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the Revolving Facility, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(b);
(g) any Incremental Term Facility may permit voluntary and customary mandatory prepayments Loans that constitute additional term loans under a then-existing tranche of term loans (includingwhich, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing such Incremental Term Loans) shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) in the case of any Other Term Loan, such Other Term Loan shall (i) rank pari passu or junior in right of payment with the Facilities, not be Guaranteed by any Person that is not the Borrower or a Guarantor under the Facilities, and be unsecured or secured on a first lien pari passu basis with the Facilities or on a “junior” basis with the Facilities, in each case over the same (or less) Collateral that secures the Facilities (and in each case, such Other Term Loan shall be subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent) but if unsecured or secured on a “junior” basis to the Facilities, such Other Term Loan shall be documented in a separate agreement than this Agreement, (ii) to the extent such Other Term Loan is pari passu in right of payment and security with the then-existing term loans, (x) may share on a greater than pro rata basis, pro rata basis or less than pro rata basis with voluntary prepayments or repayments in respect of any then-existing term loans and (y) may share on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) with mandatory prepayments or repayments in respect of the then-existing term loans; (iii) have a maturity date that is not earlier than the later of (A) the Maturity Date and (B) the final maturity of any then-existing Other Term Loan, (iv) have a Weighted Average Life to Maturity that is not shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans or any then-existing Other Term Loan (it being understood that, subject to the foregoing, the amortization schedule applicable to such Other Term Loan shall be determined by the Borrower and the Lenders of such Other Term Loan);
(i) the Administrative Agent shall have received additional commitments in a corresponding amount of such requested Incremental Facility from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment);
(j) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility and the validity of such Incremental Facility. Upon , all in form and substance reasonably satisfactory to the effectiveness thereofAdministrative Agent; and
(k) unless such Incremental Facility is to be documented in a separate agreement than this Agreement, Schedule 2.2 the Administrative Agent shall be deemed amended have received such amendments to reflect any Revolver Increase and the new Lender Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations (or, if applicable, existing Lenderin a manner consistent with the terms of the Loan Documents) shall advance Revolving Loans in an amount sufficient such that after giving effect to its such Incremental Facility. Unless such Incremental Facility is to be documented in a separate agreement than this Agreement, each Incremental Term Facility and any Incremental Revolving Loans Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in this Section 2.16), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall have outstanding its Percentage of all Revolving Loans outstanding under amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the Revolving Credit CommitmentsLoan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate in consultation with the Borrower to effect the modifications and credit extensions permitted by this Section 2.16. Notwithstanding anything herein to the contrarycontrary in this Agreement or any other Loan Document (including Section 11.01) hereof, no Lender shall have any obligation to participate in neither any Incremental Facility and no Lender’s Revolving Credit Commitment Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be increased without its consent theretorequired to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Facility and/or Incremental Revolving Commitments, as applicable, and each Lender may at its optionthe Administrative Agent, unconditionally and without cause, decline in order to participate in be effective. The effectiveness of any Incremental Facility.Facility Amendment shall be subject to the satisfaction, on the date thereof, of each of the conditions set forth above and of such other conditions as agreed to by the Borrower and the Lenders under the Incremental Term Facility or Incremental Revolving Commitments established in connection therewith. ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
Appears in 1 contract
Samples: Credit Agreement (SP Plus Corp)
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the loans borrowed thereunder Incremental Revolving Commitments, the “Incremental Term LoansCommitments”), provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith), the Maximum Incremental Facilities Amount, (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof.
(b) Each request from the Borrower pursuant to this Subsection 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Incremental Revolving Commitment or Incremental Letter of Credit Commitment) the consent of any swingline lender or issuing lender (in each case, such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by delivering an Increase Request such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Facilities”) identifying an additional Lender (Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.6; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to A) the extent compliant therewith) before capacity under clauses (ii) Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (iii), at the Borrower’s option) junior basis by the same Collateral securing the Initial Term Loans and capacity under clause Tranche B Term Loans (iiiso long as any such Incremental Commitments (and related Obligations) shall be deemed are subject to be used before capacity under clause (i) and (II) loans may be incurred under clauses (iany Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Initial Term Loans and Tranche B Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans and (II) so long as any Initial Term Loans or Tranche B Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a pari passu junior basis with by the Revolving LoansCollateral or ranking junior in right of payment, and which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Initial Term Loans or Tranche B Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Subsection 4.4(c)) (other than, in the case of any Incremental Term Facility onlycustomary bridge financing, may also rank junior in right prepayments of payment and be secured on a junior basis with such bridge financing from the Revolving Loansissuance of equity or other Indebtedness permitted hereunder), or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently (subject to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (ciii) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fbelow) any Incremental Term Facility Loans may permit voluntary and customary mandatory prepayments provide for more favorable amortization payments than the Initial Term Loans or Tranche B Term Loans, (including, for ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower maturity date and the applicable lenders providing weighted average life to maturity of such Incremental Term Facility; provided that such terms Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche B Maturity Date or the weighted average life to maturity of the Tranche B Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) shorter weighted average life to maturity than the terms under those in Tranche B Maturity Date or the Revolving Credit Facility when taken as a whole and, in each caseweighted average life to maturity of the Tranche B Term Loans, as reasonably applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the Administrative Agent applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Initial Term Loans or Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans or Tranche B Term Loans, as applicable, shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans or Tranche B Term Loans, as applicable, is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans, Tranche B Term Loans and the Incremental Term Loans, (except for covenants A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans, Tranche B Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other provisions fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (xC) any amendments to the Applicable Margin on the Initial Term Loans or Tranche B Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans or Tranche B Term Loans, as applicable, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans or Tranche B Term Loans, as applicable, shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans or Tranche B Term Loans, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans or Tranche B Term Loans, as applicable, shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations” and “Refinancing Indebtedness” and Subsection 8.8(b), in each case only to periods after extend the latest final maturity date and the weighted average life to maturity requirements, from the Tranche B Maturity Date and weighted average life to maturity of the Tranche B Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) in the case of an Incremental Revolving Commitment or an Incremental Letter of Credit Facility Commitment, provide for adjustments to the definition of “Agent Default”, “Defaulting Lender” protections and appropriate modifications to Subsection 2.8 to provide for “amend and extend” mechanics for Incremental Revolving Commitments and Incremental Letter of Credit Commitments (and related Obligations), in each case on terms as agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender); and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans and Tranche B Term Loans (except to the extent permitted by clause (iii), (iv) or (yv) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirementsabove)). The effective date of the Incremental Facility , they shall be agreed upon by reasonably satisfactory to the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAdministrative Agent.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more incremental new term loan credit facilities to be included in this Agreement (an the “Incremental Term FacilityLoan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche (the “Supplemental Term Loan Commitments” and and, together with the loans borrowed thereunder Incremental Term Loan Commitments, the “Incremental Term LoansCommitments”); provided that, (i) or (b) increase the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the Revolving Credit time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by delivering any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an Increase Request “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in such other the form reasonably acceptable to attached hereto as Exhibit I-2 (the Administrative Agent) “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent at least five for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(5d) Business Days prior Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to the desired effective date of such increase an amendment (the an “Revolver Increase” and together with any Incremental Term FacilitiesCommitment Amendment”) to this Agreement and, collectivelyas appropriate, the “other Loan Documents, executed by the Borrower and each applicable Incremental Facilities”) identifying an additional Lender (Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or additional Revolving Credit Commitment for an existing Lender) appropriate, in the opinion of the Borrower and the amount Administrative Agent, to effect the provisions of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)this Subsection 2.8; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Second Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the extent compliant therewith) before capacity under clauses (ii) Term Loan Priority Collateral Intercreditor Agreement and a Junior Lien Intercreditor Agreement or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (ian Other Intercreditor Agreement), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(bB) the Incremental Facilities Commitments and related guarantees may any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Second Lien Loan Document Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Second Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a pari passu ratable basis with the Revolving Loans, and in the case of any Incremental Initial Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
Loans (c) immediately prior to and after giving effect to such Incremental Facility, any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only Lender will be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of provide any such Incremental Facility, no Event of Default under Section 9.01(a), Commitment unless it so agrees; (jiii) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.the
Appears in 1 contract
Samples: Second Lien Credit Agreement (Atkore International Group Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrower may, from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Closing Date, upon notice by the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) Borrower to the Administrative Agent at least five and the Person appointed by the Borrower to arrange an incremental Facility (5such Person (who may be (i) Business Days prior to the desired effective date of such increase Administrative Agent, if it so agrees or (ii) any other Person appointed by the “Revolver Increase” and together Borrower after consultation with any Incremental Term Facilities, collectivelythe Administrative Agent), the “Incremental FacilitiesArranger”) identifying specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) an additional Lender increase in any Tranche then outstanding (or additional Revolving Credit which shall be on the same terms as, and become part of, the Tranche proposed to be increased hereunder) (each, a “Commitment for an existing LenderIncrease”) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(aii) the aggregate addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Facility”; and any advance made by a Lender thereunder, a “New Loan”; and the commitments thereof, the “New Commitments”) in an amount of all such Incremental Facilities shall not to exceed the sum of (iw) the greater of (A) $300,000,000 less 70,000,000 and (B) 100% of Four Quarter Consolidated EBITDA, minus the aggregate principal amount incurred prior to the date of incurrence thereof under the First Lien Cash-Capped Incremental Equivalent Debt issued, incurred or otherwise obtained Amount (and not reclassified in reliance on this clause accordance with the provisions of the First Lien Credit Agreement) (ithe “Cash-Capped Incremental Facility”), (iix) an unlimited amount such that, after giving Pro Forma Effect to such (the “Ratio-Based Incremental Facility (assuming Facility”) so long as the aggregate Revolving Increase Maximum Ratio-Based Requirement is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iiiy) an amount equal to (i) all voluntary prepayments of, and all repurchases and/or cancellations of (in an amount equal a) long term Indebtedness that is secured on a pari passu basis with the First Lien Loans or the Loans and (b) solely to the actual amount so repaidextent incurred under the Cash-Capped Incremental Amount or the First Lien Cash-Capped Incremental Amount, repurchased and/or canceledlong term Indebtedness that is unsecured or secured on a junior basis to the Loans and (ii) all voluntary prepayments of (a) revolving credit loans that are secured on a pari passu basis with the First Lien Loans or the Loans and (b) solely to the extent incurred under the Cash-Capped Incremental Term Amount or the First Lien Cash-Capped Incremental Amount, revolving credit loans that are unsecured or secured on a junior basis to the Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loanseach case, to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments thereforapplicable revolving credit commitment, and in the case of each of clauses (i) and (ii), in each casean amount equal to the face amount of the principal amount voluntarily prepaid, repurchased and/or cancelled and to the extent not made funded with the proceeds of any long-(1) long term indebtedness Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving LoansCredit Facility (as defined in the First Lien Credit Agreement)) or (2) any Asset Sale to the extent the assets subject to such Asset Sale constitute Collateral or Casualty Event in respect of any Collateral (or series of related Asset Sales or Casualty Events) (it being understood the “Prepayment-Based Incremental Facility”) (such sum, at any such time and subject to Section 1.02(i), the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (Ix) $5,000,000 or, in the case of any New Commitments denominated in a foreign currency, the equivalent principal amount thereof then outstanding in such foreign currency, converted to Dollars in accordance with Section 1.08, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Commitments established pursuant to this Section 2.14 and Incremental Equivalent Debt incurred pursuant to Section 2.15:
(A) At the Borrower’s option, the Borrower shall be deemed to have used capacity amounts under clause (i) the Ratio-Based Incremental Facility (to the extent compliant therewith) before capacity under clauses (ii) or (iii), prior to utilization of the Prepayment-Based Incremental Facility and capacity under clause (iii) the Cash-Capped Incremental Facility, and the Borrower shall be deemed to be have used before capacity under clause the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental Facility, (iB) New Commitments pursuant to this Section 2.14 and (II) loans Incremental Equivalent Debt pursuant to Section 2.15 may be incurred under clauses the Ratio-Based Incremental Facility (ito the extent compliant therewith), (ii) the Cash-Capped Incremental Facility and (iii)the Prepayment-Based Incremental Facility, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by by, at the Borrower’s option, first calculating the incurrence under clause the Ratio-Based Incremental Facility (iiwithout inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.01) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Prepayment-Based Incremental Facility (where not already qualified by materiality, otherwise in all respects), except without inclusion of any amounts utilized pursuant to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Cash-Capped Incremental Facility, only ) and then calculating the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than incurrence under the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Cash-Capped Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.,
Appears in 1 contract
Samples: Second Lien Credit Agreement
Incremental Facilities. The Borrower may (a) add At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to the Lenders), request (i) additional Term Loans or one or more incremental additional tranches of term loan facilities loans hereunder (an “Incremental Term Facility” and collectively, the loans borrowed thereunder “Incremental Term Loans”), (ii) or (b) increase increases in the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I or one or more additional tranches of revolving loans hereunder (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (collectively, the “Revolver Increase” Incremental Revolving Loans”), or (iii) in lieu of the Term Loans or additional tranches of term loans described in clause (i) above, junior lien secured or unsecured term loans that would be issued pursuant to separate loan documentation and not pursuant to this Agreement (collectively, the “Incremental Other Term Loans”; and together with any the Incremental Term FacilitiesLoans and the Incremental Revolving Loans, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and ). Notwithstanding anything to the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedcontrary herein, however, that:
(a) the aggregate amount of all such the Incremental Facilities incurred after the Closing Date shall not exceed an amount equal to the sum greater of (ix) $300,000,000 less U.S.$130,000,000 and (y) Consolidated EBITDA for the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause four most recently completed fiscal quarters for which financial statements have been delivered (i), (ii) an amount such that, and after giving Pro Forma Effect effect to the Transactions occurring on the Closing Date) (the “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 (each such Incremental Facility (assuming Facility, a “Ratio-Based Incremental Facility”) so long as the aggregate Revolving Increase is fully funded)Senior Secured Net Leverage Ratio, the Total Leverage Ratio (calculated determined on a Pro Forma Basis based (after giving effect to any Permitted Acquisition, Investment or repayment of Indebtedness or other use of the proceeds of such Incremental Facility, in each case if permitted hereunder), is equal to or less than 4.20:1.00 (after giving effect to the Transactions occurring on the financial statements delivered to Closing Date) (calculated, in the Administrative Agent pursuant to Section 8.05(a) case of any Incremental Revolving Loans, as if such Indebtedness then being incurred or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00established were fully drawn, and, in the case of all Incremental Facilities, excluding from Unrestricted Cash and Cash Equivalents the aggregate amount of cash proceeds thereof; provided that if the proceeds Senior Secured Net Leverage Ratio set forth above is satisfied on such date after giving effect to a proposed incurrence of any an Incremental Facility, the entire amount of such Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on may, in the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election sole discretion of the Borrower, be incurred under the foregoing calculation Ratio-Based Incremental Facility without regard to the incurrence of indebtedness under the Total Non- Ratio-Based Incremental Facility Cap; provided, further, that (i) if the Borrower incurs indebtedness under an Incremental Facility under the Non-Ratio-Based Incremental Facility Cap on the same date that it incurs indebtedness under the Ratio-Based Incremental Facility, then the Senior Secured Net Leverage Ratio shall only will be required calculated with respect to be satisfied on such incurrence under the LCT Test Date Ratio-Based Incremental Facility without regard to the incurrence of indebtedness under the Non-Ratio-Based Incremental Facility Cap and (iiiii) an amount equal any Indebtedness incurred under the Non-Ratio-Based Incremental Facility Cap may be reclassified, as the Borrower may elect from time to all voluntary prepayments oftime, repurchases and/or cancellations (in an amount equal to as having been incurred as a Ratio-Based Incremental Facility if the actual amount so repaid, repurchased and/or canceled) Borrower meets the Senior Secured Net Leverage Ratio set forth above at such time on a pro forma basis). Each tranche of Incremental Term Loans, Loans shall be in an integral multiple of U.S.$1,000,000 and in an aggregate principal amount that is not less than U.S.$10,000,000 (or such lesser minimum amount approved by the Administrative Agent in its reasonable discretion) and each tranche of Incremental Equivalent Debt and Revolving Loans shall be in an integral multiple of U.S.$1,000,000 and in an aggregate principal amount that is not less than U.S.$10,000,000 (or such lesser minimum amount approved by the Administrative Agent in its reasonable discretion); provided that such amount may be less than such applicable minimum amount or integral multiple amount if such amount represents all the case remaining availability under the Non-Ratio-Based Incremental Facility Cap or in respect of Revolving Loans, Ratio-Based Incremental Facilities.
(b) Each notice from the Borrower pursuant to this Section 2.24 shall set forth the extent accompanied requested amount and proposed terms of the relevant Incremental Facility. Incremental Loans may be provided by a permanent reduction in the Revolving Credit Commitments thereforany existing Lender (it being understood that no existing Lender will have an obligation to provide any portion of an Incremental Facility), in each case, on terms permitted under this Section 2.24 or any Additional Lender; provided that the Administrative Agent, the Swingline Lender and each Issuing Bank shall have consented (in each case, such consent not made to be unreasonably withheld, delayed or conditioned) to any Additional Lender’s providing such Incremental Loans if such consent by the Administrative Agent, the Swingline Lender or such Issuing Bank would be required under Section 9.04 for an assignment of Loans to such Additional Lender. Each Incremental Facility (other than any Incremental Other Term Loans) shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender or Additional Lender providing such Incremental Facility and the Administrative Agent. The Borrower shall promptly notify the Administrative Agent as to the effectiveness of any Incremental Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment and, to the extent notified by the Borrower, any Incremental Other Term Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Amendment, this Agreement and the other Loan Documents, as applicable, may be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility and the Incremental Loans evidenced thereby. Any Incremental Facility Amendment may, without the consent of any person other than the Administrative Agent, the Borrower and the Lenders or Additional Lenders providing the applicable Incremental Facility (and, if the subject of such Incremental Facility Amendment is Incremental Revolving Loans, the Issuing Bank and the Swingline Lender, as applicable), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.24. This Section 2.24(b) shall supersede any provisions in Section 9.08 to the contrary.
(c) (i) No Incremental Term Loans or Incremental Other Term Loans shall require any scheduled or other mandatory repayment of principal (other than (x) in the case of Incremental Term Loans only, amortization not to exceed 1.0% per annum (or such higher annual amortization rate necessary the achieve trading fungibility between such Incremental Term Loans and the other Term Loans, as reasonably determined by the Administrative Agent and the arranger of such Incremental Facility) of the aggregate principal amount thereof, and prepayments in which the existing Term Lenders are entitled to participate on no less than a pro rata basis and (y) (A) maturity payments and customary mandatory prepayments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness that otherwise complies with the proceeds requirements of this definition or (B) customary “AHYDO” payments) prior to the repayment of the existing Term Loans in full; provided that any long-term indebtedness Incremental Term Loans may provide for the ability of the Lenders or Additional Lenders providing such Incremental Term Loans to participate on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in any mandatory prepayments of the Term Loans to the extent otherwise required or permitted hereunder(ii) the interest rate, upfront fees and original issue discount for any Incremental Term Loans shall be as determined by the Borrower and the Lenders or Additional Lenders providing such Incremental Term Loans; provided that in the event that the “effective yield” on any Incremental Term Loans denominated in a particular Currency (excluding, for the avoidance of doubt, Revolving any Incremental Other Term Loans) provided within a 12-month period following the Closing Date (which shall be determined by (x) including interest rate margins, original issue discount (based on a four-year average life to maturity or, if less, the remaining life to maturity) and upfront fees payable by the Borrower generally to all the lenders of such Incremental Term Facility and (y) if such Incremental Term Loans are subject to an interest rate floor greater than the interest rate floor applicable to the Term Loans, such differential between interest rate floors shall be equated to the “effective yield” for purposes of determining whether an increase to the interest rate margin for the Term Loans shall be required, but only to the extent an increase in the interest rate floor applicable to the Term Loans would cause an increase in the interest rate then in effect, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Term Loans shall be increased to the extent of such differential between interest rate floors and (z) excluding customary arrangement, commitment, structuring, underwriting or other fees, in each case not shared generally with all relevant lenders) (the “Incremental Yield”) exceeds the yield on the Term Loans denominated in such Currency hereunder (determined as provided in the immediately preceding parenthetical) by more than 0.50%, then the interest margins for the Term Loans denominated in such Currency hereunder shall automatically be increased to a level such that the yield on such Term Loans is 0.50% below the Incremental Yield (it being understood agreed that (I) any increase in yield to any existing facility required due to the Borrower application of an Adjusted Interbank Offered Rate or ABR “floor” on any Incremental Facility shall be deemed to have used capacity under clause effected solely through an increase therein (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iiiimplementation thereof, as applicable), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.162.24, any all other terms of such Incremental Term Facility shall Facility, if not consistent with the terms of the existing Loans, will be on terms and pursuant to documentation to be as agreed between the Borrower and the applicable lenders Lenders or Additional Lenders providing such Incremental Term Facility; provided that such other terms either (A) reflect (as determined that are not consistent with the existing Loans hereunder shall have been consented to by the Borrower in good faith and the Administrative Agent acting reasonably) market (such consent not to be unreasonably withheld, delayed or conditioned). Any Incremental Revolving Loans shall be on the same terms and conditions as the Revolving Loans hereunder.
(taken as a wholed) at With respect to any Incremental Term Loans (i) the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) final maturity date thereof shall be no earlier than the terms Latest Maturity Date in respect of Term Loans, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Facility under those in the Revolving Credit Facility when taken Loan Documents with the longest Weighted Average Life to Maturity and (iii) subject to clauses (i) and (ii) and paragraph (c)(i) above, the amortization schedules applicable to such Incremental Term Loans shall be as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Lenders or Additional Lenders thereunder; provided that the foregoing shall not apply with respect any customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness that otherwise complies with the requirements of this definition.
(except for covenants or other provisions (xe) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date Each of the Incremental Facility Term Loans and the Incremental Other Term Loans shall rank pari passu in right of security with the Revolving Loans and the Term Loans (provided that any Incremental Other Term Loans may rank junior in right of security with the Revolving Loans and the Term Loans (“Junior Lien Incremental Other Term Loans”) or be unsecured (“Unsecured Incremental Other Term Loans”) so long as with respect to any Junior Lien Incremental Other Term Loans, an intercreditor agreement shall be agreed upon by entered into with the Borrower Representative of such providers of such Junior Lien Incremental Other Term Loans in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityBorrower.
Appears in 1 contract
Samples: Credit Agreement (Belmond Ltd.)
Incremental Facilities. The Borrower This Agreement and the other Loan Documents may (a) be amended at any time after the Closing Date to add one or more incremental tranches of term loan facilities loans (each an “Incremental Term Facility” and ”) and/or increase the loans borrowed thereunder Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term LoansFacility and each Incremental Revolving Increase is an “Incremental Facility”) or (b) increase ), at the aggregate amount option of the Revolving Credit Commitments Borrower by delivering an Increase Request substantially agreement in writing entered into by the form attached hereto as Exhibit I (or in such other form reasonably acceptable to Borrower, the Administrative Agent) to Guarantors, the Administrative Agent at least five and each Person (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with including any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount that agrees to provide a portion of its Revolving Credit Commitment such Incremental Facility (or additional amount of its Revolving Credit Commitmenteach, an “Incremental Facility Amendment”); provided, however, provided that:
(a) except in the aggregate amount case of all such Incremental Facilities shall a Copper Acquisition Facility (as to which this clause (a) does not exceed the sum of (i) $300,000,000 less apply), the aggregate principal amount of all Incremental Equivalent Debt issued, Facilities incurred after the Sixth Amendment Effective Date (which for the avoidance of doubt shall not include the Additional Term Loan Advance or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increaseany Copper Acquisition Facility) shall not exceed 3.50 to 1.00; provided that if the proceeds of (i) $150 million plus (ii) any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing additional amount (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich, for the avoidance of doubt, Revolving Loans) (it being understood that (I) may be incurred prior to the Borrower shall be deemed to have used capacity under amount described in clause (i)) (to so long as, in the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series case of related transactions by first calculating the incurrence under this clause (ii) and then calculating only, after giving effect to the incurrence under clause of such Incremental Facility (iii))and the use of proceeds thereof) on a Pro Forma Basis the Consolidated Senior Secured Leverage Ratio recomputed as of the end of (A) in the case of an Incremental Facility the proceeds of which are used to finance a Limited Condition Acquisition, the four fiscal quarter period for the applicable Limited Condition Testing Period and (B) in all other cases, the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) would not exceed 3.50:1.0; provided, that for purposes of such calculation, cash proceeds of such Incremental Facility shall not be netted from Consolidated Funded Indebtedness;
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and except in the case of any a Copper Acquisition Facility (as to which this clause (b) does not apply), no Default shall exist on the effective date of such Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and would exist after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if in the case of an Incremental Facility the proceeds of the Incremental Facility which are used substantially concurrently to finance a Limited Condition Acquisition, then at such requirement shall be (i) tested on the election Limited Condition Testing Date and (ii) subject to Section 5.02 on the effective date of such Incremental Facility;
(c) except in the Borrower, the foregoing condition in case of a Copper Acquisition Facility (as to which this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(adoes not apply), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth of each Loan Party contained in Section 6 and in the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be and remain true and correct in all material respects on and as of the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)Facility, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; , provided that if the proceeds of the Incremental Facility are used substantially concurrently with respect to finance a Limited Condition Acquisition, then at such requirement shall be (i) tested on the election Limited Condition Testing Date and (ii) subject to Section 5.02 on the effective date of such Incremental Facility;
(d) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) except in the case of a Copper Acquisition Facility (as to which this clause (B) does not apply), in the case of the Borrower, certifying that the foregoing condition conditions set forth in Sections 2.16(b) and (c) are true and correct as of such date specified therein;
(ii) except in the case of a Copper Acquisition Facility (as to which this clause (dii) shall only does not apply) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility, provided that, in the case of a Limited Condition Acquisition, amendments to the Collateral Documents may be required to be satisfied on delivered within 90 days after the LCT Test Date; provided, however, that on the date of the consummation closing of such Limited Condition Acquisition (or such longer period as the Administrative Agent may agree in its sole discretion); and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and the funding each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except in the case of a Copper Acquisition Facility (as otherwise provided to which this clause (g) does not apply), in this the case of an Incremental Facility the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility (and the use of proceeds thereof) on a Pro Forma Basis the Loan Parties would be in compliance with the financial covenants set forth in Section 2.168.11 recomputed as of the end of (i) in the case of a Limited Condition Acquisition, any the period of four fiscal quarters for the applicable Limited Condition Testing Date and (ii) in all other cases, the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b);
(h) in the case of an Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing Administrative Agent shall have mutually agreed whether such Incremental Term Facility is a term loan A (an “Incremental Tranche A Term Facility; provided that ”) or a term loan B (an “Incremental Tranche B Term Facility”);
(i) in the case of an Incremental Tranche A Term Facility:
(i) the final maturity date for such terms either Incremental Tranche A Term Facility shall not be earlier than the latest maturity date of any other Tranche A Term Facilities;
(Aii) reflect the Weighted Average Life for such Incremental Tranche A Term Facility shall not be shorter than the then remaining Weighted Average Life of any other Tranche A Term Facility;
(iii) if the All-In Yield on such Incremental Tranche A Term Facility exceeds the All-In Yield on any outstanding Tranche A Term Facility by more than 50 basis points (0.50%) per annum, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche A Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche A Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche A Term Facility (such increase to be allocated among such outstanding Tranche A Term Facility as reasonably determined by the Borrower in good faith and the Administrative Agent acting reasonablyin consultation with the Borrower);
(iv) market subject to the foregoing clauses, the other terms and conditions of such Incremental Tranche A Term Facility (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding including interest rate, interest rate margins, interest rate floors, fees, original issue discount, interest ratescall protection or prepayment penalty, rate floors, spread adjustments, call premiums, amortization and optional final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Tranche A Term Facility and approved by the Administrative Agent; and
(v) such Incremental Tranche A Term Facility shall share ratably in any mandatory prepayments of the other Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and redemption termsshall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities);
(j) in the case of an Incremental Tranche B Term Facility:
(i) the final maturity of such Incremental Tranche B Term Facility shall not be earlier than the terms under those in final maturity date of any other Term Facility;
(ii) the Revolving Credit Weighted Average Life of such Incremental Tranche B Term Facility when taken as a whole andshall not be shorter than the then remaining Weighted Average Life of any other Term Facility;
(iii) if the All-In Yield on such Incremental Tranche B Term Facility exceeds the All-In Yield on any outstanding Tranche B Term Facility by more than 50 basis points (0.50%) per annum, in each case, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche B Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche B Term Facility (such increase to be allocated among such outstanding Tranche B Term Facility as reasonably determined by the Borrower and the Administrative Agent in consultation with the Borrower);
(except for covenants iv) subject to the foregoing clauses, the other terms of such Incremental Tranche B Term Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or other provisions (x) applicable only to periods after the latest prepayment penalty, amortization and final maturity of the Revolving Credit Facility or (ydate) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be as agreed upon by the Borrower and the Lenders Persons providing such Incremental Tranche B Term Facility and approved by the Administrative Agent; and
(v) such Incremental Facility. Upon Tranche B Term Facility shall share ratably in any mandatory prepayments of the effectiveness thereofother Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities);
(k) in the case of any Incremental Revolving Increase:
(i) if any Revolving Loans are outstanding on the date of such increase, Schedule 2.2 (x) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, the proceeds of which shall be deemed amended applied by the Administrative Agent to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance prepay Revolving Loans of the existing Lenders, in an amount sufficient necessary such that after giving effect to its thereto the outstanding Revolving Loans each Lender are held ratably among all of the Lenders with a Revolving Commitment and (y) the Borrower shall have outstanding its Percentage pay an amount required pursuant to Section 3.05 as a result of all any such prepayment of Revolving Loans outstanding under of existing Lenders; and
(ii) such Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Aggregate Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any The Incremental Facility Commitments and no Lender’s Revolving credit extensions thereunder shall constitute Commitments and Credit Commitment Extensions under, and shall be increased without its consent theretoentitled to all the benefits afforded by, this Agreement and the other Loan Documents, and each Lender may at its optionshall, unconditionally without limiting the foregoing, benefit equally and without cause, decline to participate in any Incremental Facilityratably from the Guarantees and security interests created by the Collateral Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities At any time and from time to time prior to the Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (an “Incremental Term Facility” and 3) Business Days’ prior notice to the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I Administrative Agent (or in such other form lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more new credit facilities (each, an “Incremental Facility”) to the Administrative Agent at least five and consisting of one or more additional tranches of term loans (5) Business Days prior to the desired effective date of such increase (the each, an “Revolver Increase” and together with any Incremental Term FacilitiesFacility”) or an increase in an existing class of Revolving Credit Commitments (each, collectively, the an “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (Facility”), or additional amount of its Revolving Credit Commitment); provideda combination thereof, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of provided that (i) $300,000,000 less immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental Facility are being used to finance a Limited Condition Acquisition, no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the aggregate principal amount of all Incremental Equivalent Debt issued, incurred Facilities at the time of issuance or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) incurrence shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofMaximum Additional Debt Amount at such time, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal with respect to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of any secured Incremental Term Loans, Facility (other than any Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu Term Facility ranking junior in right of payment and be or with respect to security with the Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Revolving Term Loans, and in the case of event that the Yield for any such Incremental Term Facility onlyor Additional Debt, may also rank junior in right of payment and be secured on a junior as applicable, is higher than the Yield for the outstanding Term Loans by more than 50 basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisitionpoints, then at the election of Applicable Rate for the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents outstanding Term Loans shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except increased to the extent necessary so that the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of Yield for such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental outstanding Term Loans shall have a maturity date no earlier than is equal to the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Yield for such Incremental Term Facility may permit voluntary and customary mandatory prepayments or Additional Debt, as applicable, minus 50 basis points (includingany such adjustment, the “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of calculating the avoidance Yield for any Incremental Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of doubt, such Indebtedness shall be swapped to a floating rate on a customary amortization payments, excess cash flow prepaymentsmatched-maturity basis, and prepayments the Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with debtthe Borrower (or, asset sale if the Administrative Agent declines (or is unable) to determine such Yield or the appropriate floating rate swap on a matched maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and casualty insurance proceedsthe Borrower);.
(gb) except as otherwise provided in this Section 2.16, any Each Incremental Term Facility shall be on have such terms and pursuant to documentation to be agreed between as determined by the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (as determined by I) if secured on a pari passu basis with the Borrower in good faith and Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting reasonably) market terms and conditions (taken as on behalf of the holders of such Incremental Term Facility shall have become party to a whole) at second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the time of incurrence or effectiveness or Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then- remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than to the terms under those in the Revolving Credit Facility Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans in effect as of the time such Incremental Term Facility is incurred), (H) if an Incremental Facility ranks junior in right of security or payment priority to the other Term Loans or is unsecured, the Incremental Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (and subject to corresponding restrictions except as set forth below), first Lien secured or junior Lien secured or senior or subordinated or unsecured loans or notes or any Extendable Bridge Loans in respect thereof, and, in each case, the provisions of Section 2.17(a)(iii) and clause (A) to the first proviso of Section 2.17(b) shall not apply; provided that, for any Indebtedness constituting term loans incurred pursuant to this sub-clause (H) that is secured on a pari passu basis with the Obligations and does not rank junior in right of payment (including as reasonably a result of being “last out” in any waterfall) to the Obligations, if the Yield for such Indebtedness is higher than the Yield for the outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the outstanding Term Loans shall be subject to the MFN Adjustment (the foregoing requirements set forth in clauses (A) to (H), the “Required Debt Terms”), (I) subject to clauses (C) and (D) above, the amortization schedules applicable to Incremental Term Facility will be as determined by the Borrower and the Administrative Agent lenders providing such Incremental Term Facility, and (except for covenants or other provisions (xJ) applicable only to periods after the latest final maturity of the Revolving Credit any fees payable in connection with such Incremental Term Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may will be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon determined by the Borrower and the Lenders arrangers and/or lenders providing such Incremental Term Facility.
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (A) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the Incremental Revolving Credit Facility shall not have the benefit of any covenant or terms more restrictive than the covenant or terms applicable to the initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Credit Facility in effect as of the time such Incremental Revolving Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral.
(d) Each notice from the Borrower pursuant to this Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Upon the effectiveness thereofAny additional bank, Schedule 2.2 financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be deemed amended reasonably satisfactory to reflect the Borrower and, in the case of any Revolver Increase Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the new Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender (or, if applicable, existing such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each . No Lender shall have outstanding its Percentage be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in respect of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and no Lender’s Revolving Credit Commitment shall be increased without its consent theretothe Borrower, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityeffect the provisions of this Section 2.
Appears in 1 contract
Samples: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. The Borrower may (a) add The Lead Borrower may, at any time, on one or more incremental term loan facilities occasions pursuant to an Incremental Facility Agreement increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Term Revolving Facility” and the loans borrowed thereunder thereunder, “Incremental Term Revolving Loans”) or (b) increase in an aggregate principal amount not to exceed the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)Cap; provided, however, provided that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) no Incremental Revolving Commitment may be less than $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), 5,000,000,
(ii) an amount except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such thatcommitments shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) provision or (b) hereof immediately prior to such Revolver Increaseimplementation thereof) shall not exceed 3.50 to 1.00; provided that require the approval of any existing Lender other than in its capacity, if the proceeds any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) the terms of each Incremental Revolving Facility are used will be substantially concurrently identical to finance those applicable to the Revolving Facility,
(v) Except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or similar investment other Investment permitted hereunder whose consummation is not conditioned on by the availability ofterms of this Agreement, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election no Event of the Borrower, the foregoing calculation of the Total Leverage Ratio Default shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) exist immediately prior to and or after giving effect to such Incremental Revolving Facility,
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and
(vii) at no Event of Default time shall have occurred and there be continuingmore than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if the proceeds such consent would be required under Section 9.05(b) for an assignment of the Incremental Facility are used substantially concurrently Revolving Loans to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall only be required execute and deliver to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition Administrative Agent and the funding of Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (where not already qualified i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by materialitya Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, otherwise in all respects), except and
(B) to the extent applicable, certifying that the same expressly relate condition set forth in clause (a)(x) above has been satisfied.
(i) Each Lender of the applicable class immediately prior to an earlier datesuch increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in which each case they shall be true and correct in to the extent necessary so that all material respects (where not already qualified by materiality, otherwise in all respects) as of the Lenders of such earlier dateClass participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); provided it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (e).
(f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub tranches in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub tranches, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation effectiveness of such Limited Condition Acquisition any Incremental Revolving Facility are intended to be applied to finance an acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders Lenders or Additional Lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by Revolving Facility so agree, the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality consisting of an increase in an existing Commitment, the sublimits applicable to Letters of Credit shall increase by an amount, if any, agreed upon by Administrative Agent, the Borrower Issuing Banks and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Lead Borrower.
(h) This Section 2.22 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 2.18 or 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” The Borrower may, at any time and from time to time prior to the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount third anniversary of the Revolving Credit Commitments Effective Date, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days prior whereupon the Administrative Agent shall promptly deliver a copy thereof to each of the desired effective date Lenders), request the addition of such increase one or more new credit facilities (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”"INCREMENTAL FACILITIES") identifying consisting of a new tranche of term loans (an additional Lender "INCREMENTAL TERM FACILITY") or a new tranche of revolving loans (an "INCREMENTAL REVOLVING FACILITY"), or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)a combination thereof; provided, however, that:
(a) , at the aggregate amount time of all any such Incremental Facilities shall not exceed request by the sum Borrower and upon the effectiveness of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such any Incremental Facility (assuming Amendment referred to below, no Event of Default shall exist, and the aggregate Revolving Increase is fully funded)Borrower shall be in compliance with Section 8.4, the Total Leverage Ratio (calculated determined on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to as if such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election had been outstanding as of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));most recent Covenant Determination Date.
(b) the The Incremental Facilities shall together be in an aggregate original principal amount not exceeding $100,000,000, and related guarantees may each Incremental Facility shall be in an aggregate original principal amount not less than $20,000,000. Each Incremental Facility: (i) shall rank pari passu in right of payment with the Revolving Loans and the Term Loans and shall be equally and ratably secured on by the Collateral; (ii) shall not mature earlier than six (6) months after the Maturity Date (but may, subject to clause (iii) below, have amortization and commitment reductions prior to such date); (iii) shall have a pari passu basis with weighted-average life that is longer than that of the Revolving Commitments and the Term Loans, taken as a whole; and (iv) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of the Incremental Term Facilities, or the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test DateRevolving Facilities; provided, however, that on (A) the date terms and conditions applicable to any Incremental Facilities maturing after the Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Maturity Date, and (B) the Incremental Facilities may be priced differently than the Term Loans and the Revolving Loans.
(c) Any such written notice from the Borrower shall set forth the requested amount and terms of the consummation relevant Incremental Facilities. The Borrower may arrange for one or more banks or other financial institutions, each of such Limited Condition Acquisition which shall be reasonably satisfactory to the Administrative Agent and the funding Borrower (any 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 FacilityFacilities. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, no Event of Default and each Additional Lender shall become a Lender under Section 9.01(a)this Agreement, pursuant to an amendment (jan "INCREMENTAL FACILITY AMENDMENT") or to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Company, the Borrower, each (kif any) hereof shall have occurred existing Lender agreeing to provide such Commitment, each (if any) Additional Lender, and be continuing;the Administrative Agent.
(d) Each Incremental Facility Amendment shall, 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 reasonable determination of the Administrative Agent, to effect the provisions of this Section 2.15, and each such Incremental Facility Amendment shall be binding upon all of the parties to this Agreement.
(e) The effectiveness of each Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the representations and warranties conditions set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the 5.2. The proceeds of the Incremental Facility are Facilities will be used substantially concurrently to finance a Limited Condition AcquisitionPermitted Acquisitions, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition for working capital and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;for other general corporate purposes.
(f) any Anything in this Section 2.15 express or implied to the contrary notwithstanding: (i) the Administrative Agent and the Lead Arranger shall have the exclusive rights to allocate Incremental Term Facility Commitments among the Lenders and Additional Lenders providing the Incremental Facilities; (ii) no Incremental Facilities and no Incremental Commitments may permit voluntary and customary mandatory prepayments become effective on or after the Incremental Commitment Termination Date; (including, for iii) the avoidance of doubt, customary amortization payments, excess cash flow prepaymentsAggregate Incremental Commitment shall not exceed $100,000,000, and prepayments with debtthe aggregate principal amount of all Incremental Loans from time to time outstanding shall not at any time exceed $100,000,000, asset sale and casualty insurance proceeds);
(giv) except as otherwise provided in or contemplated by the forgoing paragraphs of this Section 2.162.15, any the Incremental Term Facility Facilities, the Incremental Commitments and the Incremental Loans shall be on terms subject to and pursuant to documentation to be agreed between governed by all of the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitycontained herein.
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrowers may, from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase Closing Date, upon notice by the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) Parent Borrower to the Administrative Agent at least five specifying the proposed amount thereof and the proposed currency denomination thereof, request (5i) Business Days prior an increase in any Tranche then outstanding (which shall be on the same terms as, and become part of, the Tranche proposed to be increased hereunder) (each, a “Commitment Increase”) and (ii) the desired effective date addition of one or more new term loan facilities, in each case, in such increase currency or currencies as the Parent Borrower identifies in such notice (each, a “New Facility”; and any advance made by a Lender thereunder, a “New Loan”; and the “Revolver Increase” and together with any Incremental Term Facilities, collectivelycommitments thereof, the “Incremental FacilitiesNew Commitment”) identifying in an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not to exceed the sum of (x) $25,000,000 minus the amount incurred prior to the date of incurrence thereof under the First Lien Cash-Capped Incremental Amount (the “Cash-Capped Incremental Facility”) and (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $3,500,000, and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any Commitment established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15:
(A) the Borrowers shall be deemed to have used the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to utilization of the Cash-Capped Incremental Facility,
(B) New Commitments pursuant to this Section 2.14 and New Incremental Notes pursuant to Section 2.15 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith) and the Cash-Capped Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility, and
(C) solely for the purpose of calculating the Consolidated Senior Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence, any cash proceeds incurred pursuant to this Section 2.14 and/or New Incremental Notes being incurred at such test date in calculating such Consolidated Senior Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio shall be excluded. The Borrowers may designate any Person (such Person, the “Incremental Arranger”) with such titles under the New Commitments as Borrowers may deem appropriate.
(b) Any Lender approached to participate in any New Commitment may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees with the consent of the Administrative Agent to become Lenders pursuant to a joinder agreement to this Agreement.
(c) If (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred a Tranche is increased in accordance with this Section 2.14 or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental a New Facility (assuming the aggregate Revolving Increase is fully funded)added in accordance with this Section 2.14, the Total Leverage Ratio Borrowers shall determine the effective date (calculated on the “Increase Effective Date”) and the final allocation of such increase, New Facility among the applicable Lenders. In connection with (i) any increase in a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Tranche or (bii) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds any addition of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)New Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents shall be amended in a writing (which shall be executed and delivered by the Borrowers and the Administrative Agent (and the Lenders hereby authorize the Administrative Agent to execute and deliver any such documentation)) in order to establish the New Facility or to effectuate the increases to the Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein.
(d) With respect to any Commitment Increase or addition of a New Facility pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i) in connection with any acquisition or investment) would exist after giving effect to such increase; (ii) (A) in the case of any increase of a Tranche, the final maturity of the Loans, New Commitments or Specified Refinancing Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not made have a Weighted Average Life to Maturity shorter than the longest remaining Weighted Average Life to Maturity of, any other outstanding Loans, New Loans or Specified Refinancing Loans, as applicable; provided that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Loans and (B) in the case of any New Facility, (1) other than in the case of Extendable Bridge Loans, such New Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Tranche and (2) the Weighted Average Life to Maturity of such New Facility shall be no shorter than that of any existing Tranche; (iii) except with respect to All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, any such New Facility shall have terms reasonably satisfactory to the Administrative Agent; provided, that (x) to the extent such terms are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms shall be, as determined by the Parent Borrower in consultation with the proceeds Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of any long-term indebtedness all existing Lenders (excludingto the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, Revolving Loansat the option of the Parent Borrower, any increase in the Applicable Rate relating to any existing Facility to bring such Applicable Rate in line with the New Facility to achieve fungibility with such existing Facility and (y) otherwise, may be incorporated if reasonably satisfactory to the Parent Borrower, the Incremental Arranger and the Administrative Agent and (it being understood that (Iiv) to the Borrower extent reasonably requested by the Incremental Arranger, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to Holdings and the Borrowers and each material Subsidiary Guarantor to the extent reasonably requested by the Administrative Agent. Subject to the foregoing, the conditions precedent to each such increase or New Commitment shall be deemed agreed to have used capacity by the Lenders providing such increase or New Commitment, as applicable, and the Borrowers.
(e) The additional Loans made under clause the Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Loans under such Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Tranche will participate proportionately in each then outstanding Borrowing of Loans under the Tranche.
(i) (Any New Facility shall not be guaranteed by any Person that is not a Borrower or Guarantor under each of the other Facilities, and be unsecured, secured either on a pari passu basis with the other Facilities or on a “junior” basis to the extent compliant therewithother Facilities, in each case over the same (or less) before capacity under clauses Collateral that secures the Facilities (ii) or (iii)and in the case of any such junior secured New Facility, and capacity under clause (iii) such New Facility shall be deemed subject to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)intercreditor arrangements that are reasonably satisfactory to the Administrative Agent, (ii) the New Facility shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the Facility unless the Borrowers otherwise elect (iiibut in any event no more favorably than the existing Loans), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be with respect to any New Facility that is secured on a pari passu basis with the Revolving Loansother Facilities, and the All-in Yield payable by the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect Borrowers applicable to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term New Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower Borrowers and the Lenders providing such New Facility and shall not be more than 50 basis points higher than the Incremental Facility. Upon corresponding All-in Yield payable by the effectiveness thereofBorrowers for the Initial Loans, Schedule 2.2 shall be deemed amended unless the All-in Yield with respect to reflect any Revolver Increase the Initial Loans is increased to the amount necessary so that the difference between the All-in Yield with respect to such New Facility and the new Lender (or, if applicable, existing Lender) shall advance Revolving corresponding All-in Yield on the Initial Loans in an amount sufficient such that after giving effect is equal to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility50 basis points.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five (5) Business Days prior elect to request the desired effective date establishment of such increase (the “Revolver Increase” and together with any Incremental one or more New Term Facilities, collectively, the “Incremental Facilities”) identifying Loan Commitments by an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount following the 20132017 Refinancing Amendment Effective Date not in excess of all such Incremental Facilities shall not exceed the sum of (ix) $300,000,000 less such amount so long as, at the aggregate principal amount time of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded)incurrence of the Indebtedness thereunder, the Total Senior SecuredFirst Lien Leverage Ratio (calculated shall not exceed 3.54.00:1.00 on a Pro Forma Basis based plus (y) $200,000,000. For the avoidance of doubt, (A) in the event that the Borrower exercises its right to incur Incremental Term Loans pursuant to this Section 2.14 on a date on which the Senior SecuredFirst Lien Leverage Ratio is no greater than 3.54.00:1.00 on a Pro Forma Basis, such Incremental Term Loans shall be allocated solely to clause (x) of the foregoing limitation and shall not reduce the $200,000,000 amount provided for in clause (y) of such limitation, and (B) in the event that the Borrower exercises its right to incur Incremental Term Loans on the financial statements basis of both clauses (x) and (y) of the foregoing limitation, the applicable ratio under clause (x) will not give effect to the incurrence of the portion of the Incremental Term Loans incurred in reliance on the basis of clause (y). Each such notice requesting New Term Loan Commitments shall not be less than $10,000,000 individually. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent pursuant Agent; provided that any Lender offered or approached to Section 8.05(aprovide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. Such New Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that (i) no Default or (b) hereof immediately prior Event of Default shall exist on such Increased Amount Date before or after giving effect to such Revolver IncreaseNew 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 Sections 6.01(i) and 6.06 shall not exceed 3.50 be satisfied, (it being understood that all references to 1.00“the date of such Credit Event” or similar language in such Sections shall be deemed to refer to the Increased Amount Date); provided that if the Lenders providing the applicable Incremental Term Loans so agree, in connection with a Borrowing of such Incremental Term Loans the proceeds of any Incremental Facility which are used to fund a PermittedLimited Conditionality Acquisition, (x) the only representations and warranties under Section 6.06 the making and accuracy of which will be a condition to the borrowing of such Incremental Term Loans will be limited to the Specified Representations and such of the representations and warranties made by seller and target in the relevant acquisition agreementSubject Acquisition Agreement with the relevant Credit Party as are material to the interests of the Lenders, but only to the extent that such Credit Party has the right to terminate its obligations (or to refuse to consummate the acquisition) under the relevant acquisition agreement as a result of a breach of such representations in such acquisition agreement and (y) any condition that a Default or Event of Default not be occurring or continuing (or any substantially concurrently similar condition) may be limited to finance the time of signing of the relevant acquisition agreement and not be required at the time of Borrowing of such Incremental Term Loans; (iii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.04(g); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing separate series (a “Limited Condition AcquisitionSeries”)) of New Term Loans for all purposes of this Agreement.
(b) [Intentionally Omitted]
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, then at subject to the election satisfaction of the Borrowerforegoing terms and conditions, (i) each New Term Loan Lender with a New Term Loan Commitment of any Series shall make a New Term Loan to the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (Borrower in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the actual amount so repaidNew Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, repurchased and/or canceled) of Incremental except as otherwise set forth herein or in the applicable Joinder Agreement, identical to the existing Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood ; provided that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) applicable New Term Loan Maturity Date of each Series shall be deemed no earlier than the final maturity of the Term Loans outstanding on the Increased Amount Date with respect to such New Term Loans and the mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)identical, (ii) and (iii)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 outstanding on the Increased Amount Date, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series the rate of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition interest and the funding amortization schedule applicable to the New Term Loans of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents Series shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the All-In Yield applicable to any New Term Loans incurred during the 1812 month period following the Closing2017 Refinancing Amendment Effective Date exceeds the All-In Yield of the Term Loans outstanding as of the Increased Amount Date by more than 50 basis points, then the interest rate margins for such Term Loans outstanding as of the Increased Amount Date shall be increased to the extent necessary so that the All-In Yield of such Term Loans is equal to the All-In Yield of such New Term Loans minus 50 basis points and (iv) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity as evidenced by its execution of the Revolving Credit Facility or applicable Joinder Agreement).
(ye) as are incorporated into Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement for and the benefit of all existing Lenders (which other Credit Documents as may be accomplished without further amendment voting requirements)). The effective date necessary or appropriate, in the opinion of the Incremental Facility shall be agreed upon by Administrative Agent, to effect the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage provision of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythis Section 2.14.
Appears in 1 contract
Samples: Refinancing Amendment and Successor Administrative Agent Agreement (MRC Global Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” At any time and from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable Restatement Effective Date, subject to the Administrative Agent) terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly make available to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if each of the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”Lenders), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required request to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction effect one or more increases in the Revolving Credit Commitments therefor)(or, in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (solely to the extent compliant therewithset forth in Section 2.14(d) before capacity below, provide commitments under clauses a new facility constituting a Last Out Tranche) (iian “Incremental Commitment”) from one or more Incremental Lenders; provided that (iii), A) at the time of each such request and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series upon the effectiveness of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the each Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental FacilityAmendment, no Event of Default shall have occurred and be continuing; provided that if continuing (except in connection with a Permitted Acquisition or any other Investment not prohibited by the proceeds terms of the Incremental Facility are used substantially concurrently this Agreement, which shall be subject to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no continuing Event of Default under Section 9.01(a)11.1 or 11.5) or shall result therefrom, (jB) the arrangement, upfront or similar fees in respect of such Incremental Commitment and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.14(d) below, the Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (kC) hereof except as set forth in clause (B) above or, with respect to any Last Out Tranche under Section 2.14(d) below, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Commitments plus the Total Revolving Credit Commitment shall not exceed $900,000,000. Each Incremental Commitment shall be in a minimum principal amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(i) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the relevant Incremental Commitments.
(ii) Any Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have occurred any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower (such approval in each case not to be continuing;unreasonably withheld or delayed). An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to (x) effect the provisions of this Section and/or (y) so long as such amendments are not, in the reasonable opinion of the Administrative Agent, materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(c) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(d) each of the representations and warranties set forth in Section 6 and Any Incremental Commitment may be in the other Loan Documents shall be form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and remain true original issue discounts and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier dateadvance rates, in which each case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects agreed upon (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingwhich, for the avoidance of doubt, customary amortization paymentsshall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Person other than the Guarantors and are not secured by any assets other than Collateral; (2) as between (x) the Revolving Loans (other than the Last Out Tranche), excess cash flow prepaymentsLC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx and (y) the Last Out Tranche, all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Revolving Loans (other than the Last Out Tranche), the LC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx, and prepayments with debtsecond to the Last Out Tranche; (3) the Borrower may not prepay Revolving Loans under the Last Out Tranche or terminate or reduce the commitments in respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in respect of Letters of Credit (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders(not including holders of the Last Out Tranche until all Revolving Loans, asset sale LC obligations, Noticed Cash Management Obligations and casualty insurance proceedsNoticed Xxxxxx are paid in full) shall, subject to the terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche);
, the LC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (gother than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such time and (7) except as otherwise provided set forth in this Section 2.162.14(d), the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) Last Out Tranche are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent Agent).
(except for covenants or other provisions (xe) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender this Section 2.14 shall have supersede any obligation provisions in Section 13.1 or Section 13.20 to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythe contrary.
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Incremental Facilities. The Borrower may (a) add The Parent Borrower and any one or more incremental term loan facilities Lenders (an including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Term Facility” Revolving Commitments”), as applicable, by executing and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five an Incremental Facility Activation Notice specifying (5i) Business Days prior to the desired effective date amount of such increase and the Facility or Facilities involved, (ii) the “Revolver Increase” applicable Incremental Facility Closing Date and together with any (iii) in the case of Incremental Term FacilitiesLoans, collectively(w) the applicable Incremental Term Maturity Date, (x) the “amortization schedule for such Incremental Facilities”Term Loans and (y) identifying an additional Lender (or additional Revolving Credit Commitment the Applicable Margin for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)such Incremental Term Loans; provided, however, that:
(aA) the aggregate principal amount (or committed amount, if applicable) of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Incremental Equivalent Debt issuedand the outstanding principal amount (or committed amount, incurred if applicable) of any Term Loans or otherwise obtained in reliance on this clause Revolving Commitments, shall not exceed the greater of (i), x) $1,425,000,000 and (iiy) an amount such that, on a pro forma basis, after giving Pro Forma Effect effect to the incurrence of such Indebtedness (and after giving effect to any transaction to be consummated in connection therewith and assuming that, in the case of Incremental Revolving Commitments, all such Incremental Facility (assuming the aggregate Revolving Increase is Commitments are fully fundeddrawn), the Total Consolidated Secured Leverage Ratio (calculated on a Pro Forma Basis based on Ratio, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements delivered are available, is less than or equal to the Administrative Agent pursuant 2.50:1.00;
(B) (x) with respect to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently Term Loans being incurred to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on designated by the availability of, or on obtaining, third party financing (Parent Borrower as a “Limited Condition Conditionality Acquisition”), then at the election no Default or Event of Default has occurred and is continuing as of the Borrowerdate of entry into the applicable acquisition, the foregoing calculation merger or similar agreement governing such acquisition or (y) otherwise, as of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments ofapplicable Incremental Facility Activation Date, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such any Incremental FacilityFacility Activation Notice (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Event of Default shall have has occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) is continuing or shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuingresult therefrom;
(dC) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Incremental Facility Activation Notice (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Incremental Facility Activation Notice with respect to Incremental Revolving Commitments that such commitments are fully drawn) and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) each of the representations and warranties set forth made by any Loan Party in Section 6 and in or pursuant to the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not except that any representation or warranty which is already qualified as to materiality or by materiality, otherwise reference to Material Adverse Effect shall be true and correct in all respects) as of such earlier date; provided that if the proceeds of the (x) with respect to Incremental Facility are used substantially concurrently Term Loans being incurred to finance a Limited Condition Conditionality Acquisition, solely as of the date of execution and delivery of the applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term Loans, then at the written election of the Parent Borrower, the foregoing condition in this clause (d) only representations and warranties that shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition true and the funding of the Incremental Facility, only the Specified Representations correct shall have be those as are customarily required to be so true and correct in an acquisition subject to limited conditionality (which representations and warranties shall be required to be true and correct in all material respects as of the applicable Incremental Facility Activation Date, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be required to be so true and correct in all material respects as of such earlier date)) or (without duplication y) otherwise, as of materiality qualifiersthe applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Incremental Facility Activation Notice (including the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date;
(eE) (i) all Incremental Term Loans shall have a the weighted average life to maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on no earlier than the weighted average life to maturity of the Tranche A Term Facility;
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Tranche A Term Loans and the Revolving Loans;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms and pursuant of any Incremental Term Facility, if not consistent with the applicable existing Tranche A Term Facility, shall be reasonably satisfactory to documentation to be agreed between the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any prepayments of the applicable Tranche A Term Facility unless the Parent Borrower and the applicable lenders providing in respect of such Incremental Term Facility; provided that such terms either Facility elect lesser payments;
(AH) reflect (as determined by the Borrower in good faith any Incremental Revolving Commitments and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such that Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to its Revolving Loans such Incremental Facility Activation Notice;
(I) without the consent of the Administrative Agent, (x) each Lender increase effected pursuant to this paragraph shall have outstanding its Percentage be in a minimum amount of all Revolving Loans outstanding under at least $20,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Revolving Credit Commitments. Notwithstanding anything herein to Parent Borrower after the contrary, Second Restatement Effective Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.25(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G-3, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and no Lender’s Revolving Credit Commitment (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be increased without its consent theretoagreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and each Lender terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may at its option, unconditionally be effected in writing by the Administrative Agent and without cause, decline the Parent Borrower and furnished to participate in any Incremental Facilitythe other parties hereto.
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Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” At any time and from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable Restatement Effective Date, subject to the Administrative Agent) terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to whereupon the Administrative Agent pursuant shall promptly make available to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if each of the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”Lenders), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required request to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction effect one or more increases in the Revolving Credit Commitments therefor)(or, in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (solely to the extent compliant therewithset forth in Section 2.14(d) before capacity below, provide commitments under clauses a new facility constituting a Last Out Tranche) (iian “Incremental Commitment”) from one or more Incremental Lenders; provided that (iii), A) at the time of each such request and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series upon the effectiveness of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the each Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental FacilityAmendment, no Event of Default shall have occurred and be continuing; provided that if continuing (except in connection with a Permitted Acquisition or any other Investment not prohibited by the proceeds terms of the Incremental Facility are used substantially concurrently this Agreement, which shall be subject to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no continuing Event of Default under Section 9.01(a)11.1 or 11.5) or shall result therefrom, (jB) the arrangement, upfront or similar fees in respect of such Incremental Commitment and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.14(d) below, the Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (kC) hereof except as set forth in clause (B) above or, with respect to any Last Out Tranche under Section 2.14(d) below, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Commitments plus the Total Revolving Credit Commitment shall not exceed $900,000,000.1,250,000,000. Each Incremental Commitment shall be in a minimum principal amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(i) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the relevant Incremental Commitments.
(ii) Any Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have occurred any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower (such approval in each case not to be continuing;unreasonably withheld or delayed). An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to (x) effect the provisions of this Section and/or (y) so long as such amendments are not, in the reasonable opinion of the Administrative Agent, materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(c) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(d) each of the representations and warranties set forth in Section 6 and Any Incremental Commitment may be in the other Loan Documents shall be form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and remain true original issue discounts and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier dateadvance rates, in which each case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects agreed upon (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingwhich, for the avoidance of doubt, customary amortization paymentsshall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Person other than the Guarantors and are not secured by any assets other than Collateral; (2) as between (x) the Revolving Loans (other than the Last Out Tranche), excess cash flow prepaymentsLC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx and (y) the Last Out Tranche, all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Revolving Loans (other than the Last Out Tranche), the LC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx, and prepayments with debtsecond to the Last Out Tranche; (3) the Borrower may not prepay Revolving Loans under the Last Out Tranche or terminate or reduce the commitments in respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in respect of Letters of Credit (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders(not including holders of the Last Out Tranche until all Revolving Loans, asset sale LC obligations, Noticed Cash Management Obligations and casualty insurance proceedsNoticed Xxxxxx are paid in full) shall, subject to the terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche);
, the LC Obligations, the Noticed Cash Management Obligations and the Noticed Xxxxxx vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (gother than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such time and (7) except as otherwise provided set forth in this Section 2.162.14(d), the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) Last Out Tranche are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent Agent).
(except for covenants or other provisions (xe) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender this Section 2.14 shall have supersede any obligation provisions in Section 13.1 or Section 13.20 to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitythe contrary.
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Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
