Appears in 1 contract

Samples: Credit Agreement (Hd Supply, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ 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~~ may add one or more ~~new~~ incremental term loan ~~credit~~ facilities to ~~be included in this Agreement~~ the Term B Facility (~~the~~ each, an “Incremental Term ~~Loan Commitments~~Facility”~~), (ii~~) to and/or increase ~~the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 Revolving Facility on the same terms and pricing as the Revolving Facility (~~the~~ any such increase, an “Incremental Revolving ~~Commitments”)~~Increase” and, ~~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 (~~together with ~~the~~ any Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments~~Facility, the “Incremental ~~Commitments~~Facilities”~~), provided that, after the FourthSixth Amendment Effective Date, (i~~) ~~the~~ in an aggregate principal amount ~~of Incremental Commitments permitted pursuant~~ not to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) exceed $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof.100,000,000; provided that: (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to ~~provide~~ participate in any such Incremental ~~Commitment unless it so agrees;~~ Facility, (ii) no Event of Default or Default exists or would exist immediately after giving effect thereto, (iii) the representations and warranties in the Loan Documents shall be true and correct in all material respects (and in all respects if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, (iv) the maturity date and ~~the~~ weighted average life to maturity of any such Incremental ~~Commitments~~ Term Facility shall be no earlier than ~~or shorter than, as~~ the ~~case may be, the Maturity Date or the~~ maturity date and weighted average life to ~~maturity~~ maturity, respectively, of the Term ~~B-45 Loans~~ B Facility, (v) no Incremental Term Facility shall be secured by assets other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity Collateral or guaranteed by persons other than the ~~Term B-45 Loans, and~~ Guarantors, (bvi) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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~~ Ratings Reaffirmation shall have been received by the ~~Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable);~~ Administrative Agent, (ivvii) the interest ~~rate margins applicable to the loans made pursuant to the Incremental Commitments,~~ rates and ~~the~~ mandatory amortization schedule applicable to any Incremental Term ~~Loans,~~ Facility shall be determined by the Borrower and the ~~applicable Additional Lenders~~lenders thereunder on terms and pursuant to documentation to be mutually agreed; ~~provided that~~provided, further, that the all-in yield (whether in the ~~event that the applicable~~ form of 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 any Term Loans by more than 50 basis points~~margins, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront ~~fees payable generally~~ fees) applicable 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 such Term Loans or~~ any Incremental Term ~~Loan~~ Facility will not be more than 0.50% higher than the corresponding all-in yield (giving effect to interest rate margins, OID, upfront fees, Adjusted Eurodollar Rate floor and Base Rate floor) for the ~~initial primary syndication thereof~~ existing Term B Facility unless the interest rate margins with respect to such existing Term B Facility is increased by an amount equal to the difference between the all-in yield with respect to the Incremental Term Facility and the corresponding all-in yield on such existing Term B Facility minus 0.50%; provided, further, that, in determining the all-in yield applicable to the Incremental Term Facility and the Term B Advances (x) customary arrangement, underwriting, amendment or commitment fees payable to the Joint Lead Arrangers (or their respective Affiliates) or to one or more arrangers (or their Affiliates) shall be excluded, (y) OID and upfront fees paid to the lenders shall be included (with OID and upfront fees being equated to interest based on an assumed ~~four-~~four- year life to maturity or, if shorter, the actual weighted average life to maturity); , and (Bz) ~~any arrangement, structuring or other fees payable in connection with the~~ if an Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 Facility includes an interest rate floor greater than the applicable interest rate floor ~~applicable to such~~ under the existing Term ~~Loans~~B Facility, such ~~increased amount~~ differential between interest rate floors shall be equated to an increase in the applicable interest rate margin with respect to such Incremental Term Facility for purposes of determining whether an increase to the ~~Applicable Margin for such~~ interest rate margin under the existing Term ~~Loans~~ B Facility shall be required, but only to the extent an increase in the interest rate floor ~~for such~~ in the existing Term ~~Loans~~ B Facility 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~~interest rate margin) applicable to ~~such~~ the existing Term ~~Loans~~ B Facility shall be increased by to the extent of such ~~amount;~~ differential between interest rate floors (~~v) such Incremental Commitment Amendment may provide~~ all adjustments made pursuant to this clause (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(bvii), ~~in each case only to extend~~ the ~~maturity date and the weighted average life to maturity requirements~~“MFN Adjustments”); provided, ~~from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans~~ further, that (A) to the ~~extended maturity date~~ extent such terms and ~~the weighted average life to maturity of such Incremental Term Loans~~documentation are not identical to, ~~as applicable, and (4)~~ in the case of an Incremental ~~Revolving Commitment, add, or provide for adjustments to~~Term Facility, the ~~definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications~~ Term B Facility (except to ~~subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments~~ the extent permitted by clause (~~and related Obligations~~iv) or (vii) above or only applicable after the current Term B Facility Maturity Date), they shall be reasonably satisfactory to the Administrative Agent and (B) any Incremental Term Facility shall be pari passu in ~~each case on terms agreed~~ right of payment and security and will share ratably in any voluntary or mandatory prepayments (other than scheduled amortization payments) of the Term B Facility unless the Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments; and (viii) to the extent reasonably determined by the ~~Borrower~~Administrative Agent that such items are reasonably necessary to protect the first priority lien of the Mortgage and otherwise in Administrative Agent’s reasonable discretion, the Administrative Agent shall have received (1) amendments to each Mortgage in favor of Collateral Agent existing on the date of funding of such Incremental Facility in a form reasonably acceptable to Administrative Agent, (2) endorsements to each Title Policy in form reasonably acceptable to Administrative Agent, (3) a Flood Certificate with respect to each Mortgaged Property, (4) favorable legal opinions relating to the amendments to the Mortgages in form and substance and from counsel reasonably satisfactory to Administrative Agent, and (5) such other documents as may be required in connection with the recording of such amendments to the Mortgages and the issuance of such endorsements. (b) Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary set forth in Section 11.05, this Agreement and the other Loan Documents may be amended pursuant to an amendment executed by the Loan Parties, the Administrative Agent and the ~~Lenders~~ lenders providing ~~such Commitments (including~~ an Incremental Facility, without the consent of any ~~swingline lender or issuing lender); and (vi) the~~ other ~~terms and documentation in respect thereof~~Lender, to the extent ~~not consistent with~~ reasonably required to 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 ~~prior~~ the provisions of this Section 2.08, and the Lenders hereby expressly and irrevocably, for the benefit of all parties hereto, authorize the Administrative Agent to ~~giving effect~~ enter into such amendment. In connection with any such amendment, the Borrower shall deliver to the ~~Incremental Commitment Amendment~~Administrative Agent such customary documentation and opinions reasonably requested by the Administrative Agent, ~~shall otherwise be~~ including such documents which are reasonably ~~satisfactory~~ necessary or desirable to ensure the ~~Borrower~~continued first priority liens and security interests in favor of the Collateral Agent for the benefit of the Secured Parties.

Appears in 1 contract

Samples: Credit Agreement

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom~~The Borrowers may, ~~the Borrower shall have the right, at any time and~~ from time to time after the Closing Date, upon notice by the Borrower Representative to the Administrative Agent (who shall promptly notify the applicable Lenders) specifying the proposed amount thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to ~~request new term loan commitments under~~ be increased) (a “Revolving Credit Commitment Increase”), (ii) 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 (d) below with respect to amortization)) (each, a “Term Commitment Increase”) and (iii) the addition of one or more new term loan ~~credit~~ facilities to ~~be included in this Agreement~~ the Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “~~Incremental~~ New Term Commitment” and together with the Revolving Credit Commitment Increase and the Term Commitment Increase, the “New Loan Commitments”)) by an amount not to exceed (after giving effect to any applicable usage of such amount under this Agreement) the sum of (x) $45,000,000, (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) minus the aggregate principal amount of (1) Incremental ~~Commitments permitted~~ Notes incurred pursuant to ~~this subsection 2.5 is limited~~Section 2.15 in reliance on the Cash-Capped Incremental Facility, at (2) Second Lien Additional Indebtedness utilizing Section 2.14(a)(x) of the ~~time~~ Second Lien Credit Agreement and (3) Incremental Notes (as defined in the ~~respective~~ Second Lien Credit Agreement) incurred pursuant to Section 2.15of the Second Lien Credit Agreement in reliance on the Cash-Capped Incremental ~~Commitment becomes effective~~Facility (as defined in the Second Lien Credit Agreement) (such aggregate amount, to the “Cash-Capped Incremental Facility”) plus (Ay) ~~the aggregate principal~~ an unlimited amount (~~not less than zero~~the “Ratio-Based Incremental Facility”) ~~of Indebtedness that~~ so long as the Maximum First Lien Net Leverage Requirement is ~~permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time~~ satisfied plus (Bz) ~~$250 million~~ an amount equal to all (i) voluntary prepayments of Term Loans made pursuant to Section 2.05(a) or Section 10.07(j)(i)(A) and (ii) voluntary prepayments of Revolving Credit Loans and Revolving Credit Commitment Increases to the extent the Revolving Credit Commitments with respect thereto are permanently reduced by the amount of such payments, other than in the case of clauses (i) and (ii), such voluntary prepayments financed with the proceeds of other Indebtedness (the “Prepay Incremental Amount”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount equal to the lesser of (x) the applicable Threshold Amount and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that (1) if at the time of any ~~portion of an Incremental Commitment~~ such incurrence or issuance, there is capacity under the foregoing clause (z), such capacity must be utilized before utilizing any available capacity under the foregoing clauses (x) and (y), (2) any capacity available under the foregoing clause (y) shall be deemed to be utilized prior to utilizing any capacity available under the foregoing clause (x) and (3) loans may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepay Incremental Amount, and proceeds from any such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepay Incremental Amount may be utilized in ~~reliance~~ a single transaction by first, calculating the incurrence of the Prepay Incremental Amount, if any, second calculating the incurrence under the Ratio-Based Incremental Facility and third calculating the incurrence under the Cash-Capped Incremental Facility; provided, further, that solely for the purpose of calculating the Maximum First Lien Net Leverage Requirement to determine the availability under the New Loan Commitments at the time of incurrence, (a) any New Loan Commitments that are unsecured or secured on ~~subsection 7.1(b)(xiv)(i~~a junior basis shall nevertheless be deemed to be secured on a pari passu basis to the Obligations and (b) any cash proceeds from any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility pursuant to this Section 2.14 at such test date in calculating such Maximum First Lien Net Leverage Requirement shall be excluded for purposes of cash netting (however, to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness). At the time of sending such notice to the applicable Lenders, the Borrower Representative shall specify the time period within which each applicable Lender is requested to respond (which, unless the Incremental Arranger otherwise agrees, shall in no event be less than ten Business Days from the date of delivery of such notice). (b) The Borrowers may appoint an Incremental Arranger in connection with a New Loan Commitment. Each applicable Lender shall notify the Incremental Arranger within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approached may elect or decline, in its sole discretion, to provide such increase or new facility. Any Lender not responding within such time period shall be deemed to have ~~delivered~~ declined to increase its Commitment with respect to such Tranche or to provide a ~~certificate~~ new Tranche. The Incremental Arranger shall notify the Borrower Representative of the Lenders’ responses to each request made under this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility, as applicable, the Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent, ~~certifying compliance with~~ each L/C Issuer and the ~~financial test set forth in such clause~~ Swing Line Lender (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to ~~this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from~~ the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to extent the consent of any of the ~~Administrative Agent (~~foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent shall not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then be required~~ to become Lenders pursuant to ~~subsection 10.6 (such consent not~~ a joinder agreement to ~~be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject~~ this Agreement in form and substance reasonably satisfactory to the ~~provisions of subsection 10.6(h), mutatis mutandis~~Incremental Arranger and, to the ~~same~~ extent ~~as if such Incremental Commitments and related Obligations had been obtained~~ required by ~~such Lender by way of assignment~~clause (iii) in the first proviso after 10.01(i), the Administrative Agent. (c) ~~Supplemental~~ If (i) a Revolving Tranche or a Term Loan ~~Commitments~~ Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Loan Facility is added in accordance with this Section 2.14, the Incremental Arranger and the Borrowers shall ~~become commitments under this Agreement pursuant to a supplement specifying~~ determine the ~~Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O~~ effective date (the “Increase ~~Supplement~~Effective Date”) and the final allocation of such increase or New Term Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase or New Term Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by ~~each Additional Lender that~~ the Borrowers and the Incremental Arranger (and the Lenders hereby authorize 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 or Revolving 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. As of the Increase Effective Date, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize 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 amounts in effect immediately prior to the Increase Effective Date. If the Incremental Arranger is not ~~an existing Lender substantially in~~ the ~~form attached hereto as Exhibit P (~~Administrative Agent, the ~~“Lender Joinder Agreement”), as~~ actions authorized to be taken by the ~~case may be, which~~ Incremental Arranger herein shall be ~~delivered to~~ done in consultation with the Administrative Agent ~~for recording in~~ and, with respect to the ~~Register. Upon effectiveness~~ preparation of any documentation necessary or appropriate to carry out the ~~Lender Joinder Agreement each Additional Lender~~ provisions of this Section 2.14 (including amendments to this Agreement), any comments to such documentation reasonably requested by the Administrative Agent shall be ~~a Lender~~reflected therein. The Borrowers, L/C Issuers and Lenders agree that the ~~term loan made pursuant to such Supplemental Term Loan Commitment~~ Administrative Agent shall ~~be a Loan under~~ have no liability for the ~~applicable Tranche, for all intents~~ actions of any Incremental Arranger (if other than the Administrative Agent) and ~~purposes~~ this sentence shall survive the termination of this Agreement. (d) ~~Incremental Commitments (other than Supplemental~~ With respect to any Revolving Credit Commitment Increase, Term ~~Loan Commitments) shall become commitments under this Agreement~~ Commitment Increase or addition of New Term Facility pursuant to ~~an amendment (an “Incremental Commitment Amendment”) to~~ this ~~Agreement and~~Section 2.14, 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 subsection 2.5, provided, however, that (i) except as set forth below, no Event of Default would exist after giving effect to such increase, (ii) (A) in the ~~Incremental Commitments will not be guaranteed by~~ case of any ~~Subsidiary~~ increase of the ~~Borrower other than~~ Revolving Tranche, (1) the ~~Subsidiary Guarantors, and will~~ final maturity shall be ~~secured on a pari passu or (at the Borrower’s option) junior basis by~~ the same ~~Collateral securing~~ as the Maturity Date applicable to the Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required and (3) the terms and documentation applicable to the Revolving Credit Facility shall apply, (B) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, ~~(B) the Incremental Commitments and 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~~ New 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~~ Specified Refinancing Term Loans ~~and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply~~ increased pursuant to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments this Section 2.14 shall be no earlier than ~~or shorter than, as~~ the ~~case may be, the~~ Latest Maturity Date or for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining weighted average life ~~to maturity of the Term B-45 Loans (~~of, any other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental outstanding Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such New 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Specified Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4C) in the case of ~~an Incremental Revolving Commitment~~any New Term Facility, ~~add~~such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche and the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche, (iii) except with respect to all-in yield and as set forth in subclause (C) above with respect to final maturity and Weighted Average Life to Maturity, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 otherwise as ~~in effect prior to giving effect to the Incremental Commitment Amendment,~~ shall ~~otherwise~~ be reasonably satisfactory to the ~~Borrower.~~Administrative Agent, any such New Term Facility shall have the same terms as the Term Facility; provided that (x) to the extent such terms and documentation are not consistent with the existing Term Facility (except to the extent permitted above), such terms (if favorable to the existing Lenders) shall be incorporated into this Agreement for the benefit of all existing Lenders without further amendment requirements other than consultation with the Administrative Agent pursuant to Section 2.14(c), including, for the avoidance of doubt, at the option of the Borrowers, any increase in the Applicable Rate relating to the existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility and (y) otherwise, may be incorporated if reasonably satisfactory to the Incremental Arranger and the Administrative Agent and

Appears in 1 contract

Samples: First Lien Credit Agreement (Pivotal Acquisition Corp)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan credit facilities~~ loans or (B) increases (an “Incremental Term Loan Increase”) to ~~be included in this Agreement~~ an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero) of Indebtedness that~~ 10 Business Days after the date on which such notice is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered ~~a certificate~~ to the Administrative Agent~~, certifying compliance with~~ . The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the ~~financial test set forth in such clause~~ Incremental Commitments; provided that (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ i) no Lender will be required to provide such Incremental ~~Commitment~~ Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than ~~Supplemental Term Loan Commitments) shall be made by creating~~ a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institutionLender, an ~~“Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate~~ affiliate of a Lender ~~hereunder~~or an Approved Fund, shall be reasonably acceptable to ~~the consent of~~ the Administrative Agent (with such ~~consent~~ acceptance by the Administrative Agent to not to be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the ~~consent~~ Incremental Revolving Commitments other than a Lender, an affiliate of ~~any swingline lender~~ a Lender or ~~issuing lender~~an Approved Fund, as shall be reasonably acceptable to each Issuing Lender (with such acceptance by the ~~case may be, that may then be required pursuant~~ Issuing Lenders to ~~subsection 10.6 (such consent~~ not to be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (~~it being understood that any~~ i) no Default or Event of Default shall have occurred and be continuing on such ~~Additional Lender that is an Affiliated Lender~~ Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) the Borrower shall be ~~subject~~ in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to ~~the provisions of subsection 10.6(h), mutatis mutandis,~~ Section 6.1 after giving effect to ~~the same extent as if~~ such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related ~~Obligations~~ Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had ~~been obtained by~~ occurred on such ~~Lender by way~~ date of ~~assignment)~~determination. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. For the avoidance of doubt, ~~provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than constitute Incremental Term Loans ~~secured on a junior basis by the Collateral or ranking junior in right~~ for all purposes of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date this Agreement and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other ~~than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term~~ Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerDocuments.

Appears in 1 contract

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

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(a) or (f)~~ exists or would arise ~~therefrom~~therefrom (or, in the case of an incurrence of Incremental Loans in connection with a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for 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 commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the ~~loans in any Tranche~~ 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 each a “New Revolving Facility”), ) and (iv) to ~~request~~ increase the existing Revolving Credit Facility by requesting new ~~letter of~~ revolving credit ~~facility~~ commitments ~~under one or more new letter of credit facilities~~ to be ~~included in this Agreement~~ added to an existing Tranche of Revolving Credit Loans (the “Supplemental Revolving Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”~~), provided that, after~~ ) by an amount not to exceed the ~~FourthSixth Amendment Effective Date,~~ Incremental Amount (~~i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited,~~ at the time ~~the respective~~ of incurrence or establishment of such Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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 ratioCommitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 5,000,000 and in integral multiples of $1,000,000 in excess ~~thereof~~thereof (or such lesser amounts as the Administrative Agent may agree). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 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 (other than any ~~such existing Lender and~~ Disqualified Lender) (any such bank or other financial institution, an “Additional Lender”)~~, provided~~; provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and (in the case of an Incremental Revolving Commitment only) the consent of any ~~swingline lender~~ Swing Line Lender or ~~issuing lender, as~~ the ~~case may be, that may then be required pursuant to subsection 10.6~~ L/C Issuer (such consent not to be unreasonably withheld or delayed) ), as the case may be, that may be required pursuant to Section 10.07 (it being understood that any such Additional Lender that is an ~~Affiliated~~ Affiliate Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 10.07(i), 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 and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Tranche of Revolving Loans, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O M-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P M-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the ~~Register~~Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Incremental Commitment, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. The Borrower may agree to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a ~~Lender,~~ 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~~ and the ~~applicable Tranche~~Supplemental Revolving Commitment shall be an Initial Revolving Credit Commitment, ~~for all intents and purposes~~ an Incremental Revolving Commitment or Extended Revolving Commitments of ~~this Agreement~~a particular Extension Series, as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ Borrower, each Additional ~~Lender~~Lender and the Administrative Agent. 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 ~~subsection 2.5~~Section 2.14 (including, without limitation, with respect to any Incremental Commitments to be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Guaranty, the Security Agreement and the Pledge Agreement), provided, however, that (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 ~~Term Loans~~Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 ~~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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)~~; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) (a) in the case of a New Term Facility, the maturity date and the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting~~ Initial Term ~~Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45~~ Loans, as applicable, and (b) an in the case of Incremental Revolving Commitments, the termination date of such Incremental Commitments shall be no earlier ~~maturity date and/or shorter weighted average life~~ than the Maturity Date for the Initial Revolving Credit Commitments and such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to maturity for customary bridge financings, that, 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 Maturity Date of the ~~Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable)~~Initial Revolving Credit Facility; (iv) the interest rate ~~margins~~ margins, (subject to Section 2.14(d)(iii)(a)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors applicable to the loans made pursuant to the ~~Incremental Commitments, and the amortization schedule applicable to any Incremental~~ New Term ~~Loans,~~ Facilities or New Revolving Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans Incurred~~ Incremental Term Loans incurred by the Borrower under any ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities prior to the eighteen-month anniversary of the Closing Date are higher than the applicable interest rate margin for ~~any~~ the Initial Term Loans by more than 50 basis points, then the Applicable ~~Margin~~ Rate for ~~such~~ the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term Loans is equal to the applicable interest rate margins for such ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities minus 50 basis points; ~~provided further that~~provided, further, that in determining the applicable interest rate margins for the Initial Term Loans and the ~~Incremental~~ New Term ~~Loans~~Facilities, (A) ~~original issue discount (“OID”)~~ 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 ~~such~~ the Initial Term Loans or any ~~Incremental~~ New Term ~~Loan~~ Facilities 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 fees payable in connection with the ~~Incremental~~ New Term ~~Loans~~ Facilities that are not shared with all Additional Lenders providing such ~~Incremental~~ New Term ~~Loans~~ Facilities shall be excluded; (C) any amendments to the Applicable ~~Margin~~ Rate on ~~any~~ the Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ Closing Date but prior to the time of such ~~Incremental~~ New Term ~~Loans~~ Facilities shall also be included in such calculations and (D) if the ~~Incremental~~ New Term ~~Loans~~ Facilities include an interest rate floor greater than the interest rate floor applicable to ~~such~~ 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~~ Rate for ~~such~~ the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ 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~~Rate) applicable to ~~such~~ the Initial Term Loans set forth in the last sentence of the definition of Eurodollar Rate and Base Rate, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ Lenders or of the Lenders of each Tranche ~~hereunder,~~ hereunder and (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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, the terms and documentation governing the existing Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent and the Borrower.

Appears in 1 contract

Samples: Credit Agreement (Tribune Media Co)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower shall ~~have~~ be entitled on one or more occasions and subject to satisfaction of customary conditions to incur additional term loans (the ~~right, at any time and from time to time after~~ “Additional Term Loans”) under the ~~Closing Date, (i) to request~~ First Lien Term Facility or under a new term loan ~~commitments under one or more new term loan credit facilities~~ facility to be included in ~~this Agreement~~ the Senior Facilities and/or increase the revolving commitments under the Revolving Facility (the “~~Incremental Term Loan~~ Additional Revolving Facility Commitments”)” and, (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the ~~Incremental~~ Additional Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments~~Loans, the “Incremental ~~Commitments~~Facilities”~~), provided that, after the FourthSixth Amendment Effective Date, (i~~) ~~the~~ in an aggregate principal amount of ~~Incremental Commitments permitted pursuant~~ up to ~~this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective,~~ $25,000,000 and to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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 Lenderguarantees as, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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~~ collateral securing, the ~~Term Loans~~First Lien Senior Facilities; provided that (i) no event of default or default exists or would exist after giving effect thereto, (Bii) the Incremental Commitments and 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 Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to all financial covenants would 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) satisfied on a pro ~~rata~~ forma basis ~~(or otherwise provide~~ on the date of incurrence and for ~~more favorable prepayment treatment for such Term Loans than such Incremental Loans)~~the most recent determination period, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required after giving effect to ~~provide~~ any such Incremental ~~Commitment unless it so agrees;~~ Facilities and other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Facilities, (iii) the maturity date ~~and~~ of the ~~weighted average life to maturity of such Incremental Commitments~~ Additional Term Loans shall be no earlier than ~~or shorter than~~the maturity date of the First Lien Term Facility, as (iv) the ~~case may be, the Maturity Date or the weighted~~ average life to maturity of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental~~ Additional Term Loans ~~constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a~~ shall be no shorter ~~average life to maturity~~ than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted remaining average life to maturity of the First Lien Term ~~B-45 Loans~~Facility, ~~as applicable);~~ (ivv) all fees and expenses owing in respect of such increase to the Agent and the Lenders shall have been paid, (vi) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be ~~increased~~ subject to ~~the extent necessary so~~ a “most favored nation” pricing provision that ensures that the ~~applicable interest rate margin for such~~ initial yield on the Additional Term Loans ~~is equal to~~ does not exceed the then-applicable ~~interest rate margins for such Incremental~~ margin on the First Lien Term ~~Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental Term Loans~~Facility by more than 00 xxxxx xxxxxx, (Axxx) ~~original issue discount (“OID”) or upfront fees payable generally to all participating~~ the Additional ~~Lenders in lieu of OID (which~~ Revolving Facility Commitments shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether documented as an increase to the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, Revolving Facility and (4) in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender); and (viviii) the other terms and documentation in the respect thereof, to the extent not consistent with ~~this Agreement as in effect prior to giving effect to~~ the ~~Incremental Commitment Amendment~~First Lien Senior Facilities, shall otherwise be reasonably satisfactory to the ~~Borrower~~Agent. The Borrower may seek commitments in respect of 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 who will become Lenders in connection therewith.

Appears in 1 contract

Samples: Agreement and Plan of Merger (STR Holdings (New) LLC)

Incremental Facilities. (a) So long as no Event of Default under subsection ~~8(a~~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 ~~Closing~~ 2021 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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~~ and/or (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this subsection ~~2.5 is limited~~2.9 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under this Agreement in compliance with subsection ~~7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be ~~incurred~~ Incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~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 ~~ratio)~~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~~ Loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this subsection ~~2.5~~ 2.9 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~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 ~~2.5~~ 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 any existing Lender or by any other bank or financial institution (any such ~~existing Lender and any such~~ other bank or ~~other~~ financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to 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~~ withheld, delayed or ~~delayed~~conditioned) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be ~~subject to the provisions of subsection 10.6(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)~~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 O O-1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P O-2 (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 Incremental Lender shall be a ~~Lender,~~ 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~~or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~for all intents and purposes of this Agreement~~as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ applicable Incremental Lender. An Notwithstanding anything to the contrary herein or in any other Loan Document, 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, (x) to ~~effect~~ effectuate the provisions of this subsection ~~2.5~~2.9 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any Tranche of then outstanding Term Loans; provided, however, that (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 (~~be, at the Borrower’s option) , secured on an equal and ratable basis or a junior basis by the same Collateral securing the ~~Term Loans~~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 ~~pari passu~~ on an equal and ratable basis in right of payment with or (at the Borrower’s option) junior in right of payment to the ~~Term Loans~~ 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 ~~Term Loans~~ Senior Credit Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 acquisition) or Recovery Events or from Excess Cash Flow, to the ~~applicable~~ extent the Net Available Cash 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 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with subsection 10.1(d)(v)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (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 Initial Revolving Maturity Date; (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 B Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term ~~B-45 Loans~~ B Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for (x) customary bridge financings, ~~that~~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 B Loan Maturity Date ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ B Loans, as ~~applicable~~applicable and (y) Customary Term A Loans); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any term loans (other than Customary Term A Loans) made prior to the date that is 12 months after the 2021 Amendment 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 ~~are~~ or under subsection 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 ~~any~~ the Initial Term B Loans by more than 50 basis points, then the Applicable Margin for ~~such~~ the Initial Term B Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term B Loans is equal to the applicable interest rate margins for such Incremental Term ~~Loan Commitment~~ Loans or such other term loans, as applicable, minus 50 basis points; ~~provided~~ provided, further that, in determining the applicable interest rate margins for the Initial Term B Loans and the Incremental Term ~~Loans~~Loans or such other term loans, as applicable, (A) original issue discount (“OID”) or upfront fees payable generally to all participating ~~Additional~~ Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under ~~such~~ the Initial Term B Loans or any Incremental Term Loan or other term loan, as applicable, 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 B Loans are issued in a manner such that all Initial Term B Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term B Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term B Loans shall be determined on a weighted average basis); (B) any arrangement, ~~structuring~~ 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 ~~Additional~~ 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 ~~any~~ the Initial Term B Loans that became effective subsequent to the ~~FifthSixth~~ 2021 Amendment Effective Date but prior to the time of such Incremental Term B 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 ~~such~~ the Initial Term B 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 ~~such~~ the Initial Term B Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ the Initial Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to ~~such~~ the Initial Term B Loans shall be increased by such amount; (vvi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Incremental Lenders in any required vote or action of the Required Lenders, ~~Supermajority~~ Required Revolving Lenders, Required Term A Lenders, Required Term A/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 ~~Permitted~~ Obligations,” “Disqualified Stock,” and “Refinancing Indebtedness~~” and subsection 7.8(b)~~”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term A Loan Maturity Date ~~of such~~ or the Initial Term ~~Loans~~ B Loan Maturity Date, as applicable, and remaining weighted average life to maturity of ~~such~~ the Initial Term A Loans or Initial Term B Loans, as applicable, to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as ~~applicable,~~ applicable and (4) in for the ~~case~~ amendment of ~~an Incremental Revolving Commitment, add, or provide for adjustments to,~~ clause (iii) of the definition of “~~Agent Default,~~Additional Obligations” ~~“Defaulting Lender” protections and appropriate modifications to subsection 2.7~~ to provide for ~~“amend and extend” mechanics for~~ the applicable mandatory prepayment protections to apply to such Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender)Term Loans; and (vivii) 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, (x) in the case of “term A” Incremental Term Loans, the terms and documentation governing the Initial Term A Loans, (y) in the case of “term B” Incremental Term Loans, the terms and documentation governing the Initial Term B Loans or (z) in the case of Incremental Revolving Commitments, the terms and documentation governing the Initial Revolving Commitments (except to the extent permitted by clause (iii), (iv), (v) or (vi) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Commitment Amendment, this Agreement and any other Loan Document shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby.

Appears in 1 contract

Samples: Credit Agreement (Frontdoor, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan credit facilities~~ loans or (B) increases (an “Incremental Term Loan Increase”) to ~~be included in this Agreement~~ an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero~~10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) ~~of Indebtedness that is permitted~~ no Lender will be required to ~~be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at~~ provide such ~~time plus (B) $250 million~~ Incremental Commitment and (ii) if any entity providing all or a portion of the Incremental Commitments other than a Lender, an ~~Incremental Commitment is to~~ affiliate of a Lender or an Approved Fund, shall be ~~incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate~~ reasonably acceptable to the Administrative ~~Agent, certifying compliance with the financial test set forth in such clause~~ Agent (~~together with calculations demonstrating compliance~~ with such ~~ratio~~acceptance by the Administrative Agent to not be unreasonably withheld or delayed). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request from~~ In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to ~~this subsection 2.5~~ the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the ~~requested amount~~ sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and ~~proposed terms~~ (y) the OID or the upfront fees paid to all of the ~~relevant~~ Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental ~~Commitments. The~~ Tranche A Term Loans), if the final maturity date of any Incremental ~~Commitments~~ Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any ~~portion thereof~~other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be ~~made~~ increased by ~~any existing Lender~~ an additional 200 basis points in the form of an additional OID or ~~by any other bank or financial institution~~ upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~any such existing Lender and any such bank or other financial institution, an “Additional Lender”~~vii), ~~provided~~and (viii) the Incremental Revolving Commitments, ~~if such Additional Lender is not already~~ the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a ~~Lender hereunder or an Affiliate of a Lender hereunder,~~ form reasonably acceptable to ~~the consent of~~ the Administrative Agent (~~such consent not~~ each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be ~~unreasonably withheld or delayed) and~~ bound to the ~~consent~~ terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is Incremental Term Loans made on an ~~Affiliated Lender~~ Increased Amount Date shall be ~~subject to~~ designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of ~~subsection 10.6(h)~~clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, ~~mutatis mutandis~~in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to ~~the same extent~~ give pro forma effect to such acquisition as if it had occurred on such ~~Incremental Commitments and related Obligations had been obtained by such Lender by way~~ date of ~~assignment)~~determination. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. For the avoidance of doubt, ~~provided, however, that~~ (i) ~~(A)~~ the Tranche A Term Loans constitute 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 Tranche A Term Loans, (Bii) the ~~Incremental Commitments and 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~~ 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than constitute Incremental Term ~~Loans secured on a junior basis by the Collateral or ranking junior in right of payment~~Loans, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; and (iii) the ~~maturity date and the weighted average life to maturity of such Incremental Commitments~~ Tranche A Term Lenders 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each ~~case only to extend the maturity date~~ case, for all purposes of this Agreement and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerLoan Documents.

Appears in 1 contract

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

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, on behalf of itself, or in the case of Incremental Loans (as defined below) the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ Existing Term Tranche ~~of Loans~~ (the “Supplemental Term Loan Commitments”), (iii) to increase any existing Incremental Revolving Commitments by requesting new Incremental Revolving Commitments be added to an existing tranche of Incremental 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), ; provided that~~, after the FourthSixth Amendment Effective Date~~, (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 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 ~~subsection 7.1(b)(xiv)(i)~~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)~~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 and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~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 2.5~~ 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 other financial institution (~~any such existing Lender and~~ any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of any swingline lender or letter of credit issuing lender that would have credit exposure to such Additional Incremental Lender (in each case, such consent not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 Incremental Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O I-1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 (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 Incremental Lender shall be a ~~Lender,~~ 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~~ or commitments made pursuant to such Supplemental Revolving Commitment shall be Incremental Revolving Commitments, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments thereunder to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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, an Escrow Borrower (if applicable), and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the ~~Term Loans~~First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to a 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 payment with or (at the Borrower’s option) junior to the ~~Term Loans~~ First 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~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the ~~Term Loans~~ First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 ~~applicable~~ 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as ~~applicable~~applicable or (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any floating rate term loans denominated in Dollars with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower under any Incremental Term Loan ~~Commitment~~ Commitment, made on or prior to the 12-month anniversary of the Restatement Effective Date, are higher than the applicable interest rate margin for ~~any~~ the Initial Term Loans by more than 50 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the applicable Initial Term Loans at the time such Incremental Commitments become effective shall be increased to the extent necessary so that the applicable interest rate margin for such Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis ~~points~~points (the number of basis points by which the then effective interest rate margin is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable Initial 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 such 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 such Initial Term Loans are issued in a manner such that all such 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 ~~any~~ the applicable Initial Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.Restatement

Appears in 1 contract

Samples: First Lien Credit Agreement (Atkore International Group Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at~~ At any time and from time to ~~time after~~ time, subject to the ~~Closing Date~~terms and conditions set forth herein, the Borrower Representative may, by notice to the Agent (i) whereupon the Agent shall promptly deliver a copy of such notice to each of the Lenders), request ~~new term loan commitments under~~ to incur one or more ~~new term loan credit facilities to be included~~ increases in ~~this Agreement~~ the Revolving Credit Commitments (the “Incremental Term Loan Commitments”), (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental ~~Commitments~~Facilities”). Notwithstanding anything to the contrary herein, ~~provided that~~without the consent of the Required Lenders, ~~after the FourthSixth Amendment Effective Date, (i)~~ the aggregate principal amount of the Incremental Facilities from and after the ThirdFifth Amendment Effective Date shall not exceed $75.0100.0 million. All Incremental Revolving Commitments ~~permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the~~ shall be in an integral multiple of $250,000 and in an aggregate principal amount (that is not less than ~~zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i)~~ $5 million (or in such lesser minimum amount agreed by the ~~Borrower or its Restricted Subsidiaries at~~ Agent); provided, that such ~~time plus (B) $250 million and (ii)~~ amount may be less than the applicable minimum amount if ~~any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i),~~ such amount represents all 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). Any loans made remaining availability in respect of ~~any such~~ the Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereofFacilities. (b) ~~Each request from~~ Any Incremental Revolving Commitment shall be on terms identical to the ~~Borrower pursuant~~ Revolving Credit Commitments under the Revolving Credit Facility proposed to ~~this subsection 2.5~~ 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 ~~set forth~~ be no earlier (but may be later) than the ~~requested amount~~ Revolving Credit Commitments proposed to be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed ~~terms~~ to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the ~~relevant Incremental Commitments. The Incremental Commitments (~~applicable Revolving Credit Facility or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lenderboth Revolving Credit Facilities, as the case may be, ~~that may then be required~~ pursuant to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ 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 be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Margin 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 ~~Additional Lender~~ that ~~is an Affiliated Lender~~ the Applicable Margin and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. Any Incremental Revolving Commitments shall be ~~subject~~ allocated between the US Revolving Credit Facility and the Canadian Revolving Credit Facility as designated by the Borrower Representative, in consultation with the Agent; provided that the Canadian Revolving Credit Commitments (including the Canadian ABL Sublimit), after giving effect to the ~~provisions~~ establishment of ~~subsection 10.6(h)~~Incremental Revolving Commitments, ~~mutatis mutandis, to~~ shall not exceed $45 million in the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way~~ aggregate without the consent of ~~assignment)~~the Agent. (c) ~~Supplemental Term Loan~~ Each notice from any Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Revolving Commitments shall ~~become commitments~~ be reasonably satisfactory to the Borrower Representative, and, to the extent its consent would be required with respect to an assignment to such Additional Lender under ~~this Agreement pursuant to a supplement specifying~~ Section 9.4(b), the ~~Tranche~~ Agent, the Swingline Lender and each Issuing Bank (in each case, any approval thereof not to be ~~increased~~unreasonably withheld, ~~executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”)~~ delayed or ~~by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”~~conditioned), ~~as the case may be~~and, ~~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~~ if not already a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become ~~commitments~~ a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental ~~Commitment~~ Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Representative, any applicable Borrowers, such Additional Lender or Additional Lenders and ~~each Additional Lender~~the Agent. An No Incremental ~~Commitment~~ Amendment ~~may, without~~ shall require the consent of any Lenders or any other ~~Lender~~Person other than the Borrower Representative, ~~effect~~ any applicable Borrowers, the Agent and the Additional Lenders with respect to such Incremental Amendment. The Lenders hereby irrevocably authorize the Agent to enter into Incremental Amendments and, as appropriate, amendments to ~~any~~ the other Loan Documents as may be necessary in order to establish new tranches or ~~appropriate,~~ 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 Agent, the Borrower Representative and the ~~Administrative Agent,~~ applicable Borrower to effect the provisions of this ~~subsection 2.5~~Section 2.20 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). In addition, ~~provided~~if so provided in such Incremental Amendment and with the consent of the applicable Issuing Banks, ~~however~~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, ~~that~~ 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 Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Agent and the Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date and (ii) the satisfaction or waiver on the date of the effectiveness of the Incremental Revolving Commitments thereunder of 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 in accordance with Section 1.5(d)) shall exist on the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section 2.20, each Lender under such Revolving Credit Facility 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 Lender”) in respect of such increase, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit Facility (including each such Incremental Lender) will equal the percentage of the Total Revolving Credit Commitments of all Lenders in such Revolving Credit Facility represented by such Lender’s Revolving Credit Commitment thereunder. Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower Representative, 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 Applicable Lender Percentages in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Agent, following consultation with the Borrower Representative, (A) by requiring the ~~Incremental Commitments will not~~ outstanding Revolving Credit Loans to be ~~guaranteed by any Subsidiary~~ prepaid with the proceeds 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 Term Loans~~new Revolving Credit Borrowing, (B) ~~the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right~~ by causing non-increasing Lenders to assign portions of ~~payment with~~ their outstanding Revolving Credit Loans to new or ~~(at the Borrower’s option) junior to the Term Loans and~~ increasing Lenders, (C) ~~no Incremental Commitment Amendment may provide for~~ by a combination of the foregoing or (ID) ~~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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply~~ means agreed to ~~the applicable Term Loans (other than Incremental Term Loans secured on a junior basis~~ by the ~~Collateral~~ Agent and the Borrower Representative, and any such prepayment or ~~ranking junior in right of payment, which~~ assignment shall be subject to ~~junior prepayment provisions) on a pro rata basis (~~Section 2.15 but shall otherwise be without premium or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative penalty. The Agent and the Lenders ~~providing such Commitments (including~~ hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any ~~swingline lender or issuing lender); and (vi)~~ of the ~~other terms and documentation in respect thereof,~~ transactions effected pursuant to the ~~extent not consistent with this Agreement as~~ immediately preceding sentence. For the avoidance of doubt, no existing Lender shall be required to participate in ~~effect prior to giving effect to the~~ an Incremental ~~Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~Facility without its consent.

Appears in 1 contract

Samples: Abl Credit Agreement (Specialty Building Products, Inc.)

Incremental Facilities. (a) So The Parent Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that, at the time of (and after giving effect to) the establishment of any Incremental Revolving Commitments or Incremental Term Commitments, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Commitments established pursuant to this Section 2.21, together with the aggregate amount of all Incremental Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(a)(xx), shall not exceed the greater of (A) $300,000,000 and (B) an amount such that, after giving effect to the making of such Incremental Revolving Commitments (and assuming any such Incremental Revolving Commitments are fully drawn) and Incremental Term Loans and the making of any other Indebtedness incurred substantially simultaneously therewith, the Senior Secured Net Leverage Ratio, calculated on a pro forma basis, is no greater than 2.50 to 1.00. Each such notice shall specify (A) the date on which the Parent Borrower proposes that the Incremental Revolving Commitments 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 agreed that (x) 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 Parent Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lender). (b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments 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 Tranche A Term Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, (ii) any Incremental Term Loan shall have terms, in Parent Borrower’s reasonable judgment, customary for a term loan under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, provided that 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 Tranche A Terms Loans, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the later of (1) the Tranche A Maturity Date and (2) the Latest Maturity Date then in effect with respect to Extended Term Loans, (v) except as set forth above, the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants, (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vii) any Incremental Facility shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent). Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, 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 the foregoing, in no event shall there be more than seven maturity dates in respect of the Credit Facilities (including any Extended Term Loans, Extended Revolving Commitments, Replacement Term Loans or Replacement Revolving Facilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Parent Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Parent Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default ~~under subsection 8(a~~shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) ~~or (f) exists or would arise therefrom~~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 on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof that such Incremental Revolving Commitments are fully drawn), Holdings and the Parent Borrower shall ~~have~~ be in pro forma compliance with the ~~right~~financial covenants set forth in Sections 6.12 and 6.13, at (iv) the Parent Borrower shall make any ~~time~~ payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and ~~from time to time after~~ the ~~Closing Date~~related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (i) ~~to request new term loan commitments under one~~ no Default or ~~more new term loan credit facilities to~~ Event of Default shall have occurred and be ~~included~~ continuing as of the date of entry into the definitive acquisition documentation in ~~this Agreement~~ respect of such Limited Conditionality Acquisition (the “~~Incremental Term Loan Commitments~~Limited Conditionality Acquisition Agreement”), (ii) ~~to increase~~ on the ~~loans~~ date of effectiveness of the Limited Conditionality Acquisition Agreement, the representations and warranties of each Loan Party set forth in ~~any Tranche by requesting new term loan commitments to~~ the Loan Documents shall be ~~added to an existing Tranche~~ true and correct on and as of ~~Loans (the “Supplemental Term Loan Commitments”),~~ such date and (iii) ~~to request new commitments under one or more new revolving facilities to be included in this~~ on the date of effectiveness of the Limited Conditionality 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 (together with the~~ assuming such Incremental Term ~~Loan Commitments~~Loans were made on such date, ~~Supplemental Term Loan Commitments~~ Holdings and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Parent Borrower shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in pro forma compliance with the financial ~~test~~ covenants set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new TrancheSections 6.12 and 6.13. Each Incremental ~~Commitment under anythe Term Loan~~ Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to give effect to the provisions of this ~~subsection 2.5~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental ~~Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no~~ Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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~~ be a “Lender” (and a Lender in respect of ~~OID~~Commitments and Loans of the applicable Class) ~~payable by the Borrower to the Lenders under such Term Loans or any Incremental Term Loan in the initial primary syndication thereof~~ hereunder, and henceforth shall be ~~included~~ entitled to all the rights of, and benefits accruing to, Lenders (~~with OID being equated to interest based on an assumed four-year life to maturity); (B~~or Lenders in respect of Commitments and Loans of the applicable Class) ~~any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans~~ hereunder and shall be ~~excluded;~~ bound by all agreements, acknowledgements and other obligations of Lenders (~~C) any amendments to the Applicable Margin on any Term~~ or Lenders in respect of Commitments and Loans ~~that became effective subsequent to the FifthSixth 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 such Term Loans, such increased amount shall be equated to the applicable ~~interest rate margin for purposes of determining whether an increase to~~ Class) hereunder and under the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicableLoan Documents, and (4ii) in the case of an any Incremental Revolving Commitment, ~~add~~(A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or ~~provide for adjustments to,~~ reduction from time to time as set forth in the definition of the term “~~Agent Default,~~Revolving Commitment.” ~~“Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for~~ For the avoidance of doubt, upon the effectiveness of any Incremental Revolving ~~Commitments~~ Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and ~~related Obligations~~each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit 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. (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 Parent Borrower 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 Parent Borrower referred to in paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case ~~on terms agreed by the Borrower, the Administrative Agent and~~ advising the Lenders ~~providing such Commitments (including~~ of the details thereof and, in the case of effectiveness of any ~~swingline lender or issuing lender); and (vi)~~ Incremental Revolving Commitments, of the ~~other terms and documentation in respect thereof, to~~ Applicable Percentages of the ~~extent not consistent with this Agreement as in effect prior to~~ Revolving Lenders after giving effect thereto and of the assignments required to ~~the Incremental Commitment Amendment, shall otherwise~~ be ~~reasonably satisfactory~~ made pursuant to ~~the Borrower~~paragraph (e) above.

Appears in 1 contract

Samples: Incremental Facility Agreement (Trimas Corp)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom,~~ The Borrower may by written notice to the ~~Borrower shall have the right, at any time and from time~~ Administrative Agent elect to ~~time after the Closing Date,~~ request (i) prior to ~~request new term loan commitments under~~ the Maturity Date of the Revolving Credit Facility and prior to any Increased Amount Date with respect to the Revolving Credit Facility, to replace the Revolving Credit Facility with one or more new ~~term loan~~ revolving credit ~~facilities to be included in this Agreement~~ commitments (the “~~Incremental Term Loan~~ Replacement Revolving Credit Commitments”), (ii) prior to the Maturity Date of the applicable Revolving Credit Facility, one or more increases to the Revolving Credit Commitments (any such increase in commitments, the ~~loans in any Tranche by requesting~~ “Incremental Revolving Credit Commitments”) and/or (iii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan commitments ~~to be added to an existing Tranche of Loans~~ (the “~~Supplemental~~ New Term ~~Loan~~ Commitments”)” and, (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 (together with the ~~Incremental Term Loan Commitments, Supplemental Term Loan~~ Replacement Revolving Credit Commitments and the Incremental Revolving Credit Commitments, the “Incremental Commitments”), ) which may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, ~~after the FourthSixth Amendment Effective Date,~~ (ix) the aggregate principal amount of ~~Incremental~~ all Replacement Revolving Credit Commitments ~~permitted pursuant to this subsection 2.5 is limited~~shall not exceed $175,000,000, ~~at the time the respective Incremental Commitment becomes effective, to~~ (y) (A) the aggregate principal amount (of all such Incremental Revolving Credit Commitments and New Term Commitments shall not ~~less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time~~ exceed $125,000,000, plus (B) after the full utilization of the amounts available under clause (A) above, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (B), the Senior Secured Leverage Ratio shall not exceed 3.50:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such Incremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Senior Secured Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (z) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $~~250 million~~ 5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) if the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of an such Replacement Revolving Credit Commitments, Incremental ~~Commitment is to~~ Revolving Credit Commitments or New Term Commitments, as applicable, be ~~incurred in reliance on subsection 7.1(b)(xiv)(i),~~ allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have ~~delivered a certificate~~ occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Replacement Revolving Credit Commitments or Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Replacement Revolving Credit Commitments, Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, ~~certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ and each of ~~any such Incremental Commitment (other than Supplemental Term Loan Commitments)~~ which shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be~~ recorded in ~~a minimum aggregate amount of at least $15,000,000~~ the Register, and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing each New Revolving Credit Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated New Term Lender shall be subject to the ~~provisions of subsection 10.6(h)~~requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Incremental Commitments, ~~mutatis mutandis,~~ if applicable; and (5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected through an increase to the ~~same extent~~ existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as if shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and ~~related Obligations had been obtained by such~~ each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Credit Lender ~~by way~~ shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of ~~assignment)~~this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) ~~Supplemental Term Loan~~ Any Replacement Revolving Credit Commitments shall be effective on a single Increased Amount Date (the “Replacement Revolver Date”) and no Replacement Revolving Credit Commitments may be incurred after the Replacement Revolver Date. On the Replacement Revolver Date, subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender shall make its Replacement Revolving Credit Commitment available to the Borrower (when borrowed, a “Replacement Revolving Loan”) and (ii) each New Revolving Credit Lender shall become ~~commitments~~ a Lender hereunder with respect to its Replacement Revolving Commitment and Replacement Revolving Loans. The terms and provisions of the Replacement Revolving Credit Commitments and the Replacement Revolving Loans shall be as agreed between the Borrower and the New Revolving Credit Lenders providing such Replacement Revolving Credit Commitments and Replacement Revolving Loans, and except as otherwise set forth herein shall be reasonably satisfactory to Administrative Agent, the L/C Issuer and the Swing Line Lender. In any event: (i) the existing Revolving Credit Commitments shall be terminated and the existing Revolving Loans shall be repaid as a condition to the Replacement Revolver Date and any Letters of Credit outstanding on the Replacement Revolver Date shall be deemed issued under ~~this Agreement pursuant~~ the Replacement Revolving Credit Commitments; (ii) the final maturity date of any Replacement Revolving Loans shall be no earlier than the original Maturity Date of the Revolving Credit Facility; (iii) the Replacement Revolving Loans will rank pari passu in right of payment with the Term Loans and the liens securing the Replacement Revolving Loans will rank pari passu with the liens securing the existing Revolving Credit Loans; (iv) the covenants and events of default applicable to the Replacement Revolving Credit Commitments and Replacement Revolving Loans shall be substantially identical to, or less favorable to the investors providing such Replacement Revolving Credit Commitments, than terms applicable to the Term Loans at such time; provided, that notwithstanding the foregoing, there may be financial maintenance covenants applicable only to the Replacement Revolving Credit Commitments and Replacement Revolving Loans so long as an event of default with respect to the Term Loans would result from any acceleration of the Replacement Revolving Loans or termination of the Replacement Revolving Credit Commitments as a ~~supplement specifying~~ result of a breach of such covenant; (v) the ~~Tranche~~ yield applicable to the Replacement Revolving Loans shall be ~~increased, executed~~ determined by the Borrower and the applicable New Revolving Credit Lenders and shall be set forth in each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender applicable Joinder Agreement~~”), as~~ ; and (vi) all other material terms of the ~~case may be, which~~ Replacement Revolving Credit Commitments and Replacement Revolving Loans shall be ~~delivered~~ identical to the ~~Administrative Agent for recording in~~ existing Revolving Credit Agreement on the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this AgreementReplacement Revolver Date. (d) ~~Incremental~~ Any New Term Loans made pursuant to any New Term Commitments of a separate Class of term loans on an Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (~~other than Supplemental~~ i) each New Term Lender of such Class shall make a Loan ~~Commitments~~to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of such Class shall become ~~commitments under~~ a Lender hereunder with respect to the New Term Commitment of such Class and the New Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any existing Class of Term Loans and be treated as the same Class as such Term Loans. (e) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Class of New Term Commitments and the New Term Lenders of such Class and (ii) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case, subject to the assignments contemplated by clause (b) of this ~~Agreement~~ Section 2.14. (f) The terms and provisions of the New Term Loans and New Term Commitments of any Class shall be as agreed between the Borrower and the New Term Lenders providing such New Term Loans and New Term Commitments, and except as otherwise set forth herein, to the extent not identical to the Term B Loans, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Term B Loans (except by virtue of amortization or prepayment of the Term B Loans prior to the time of such incurrence); (ii) the Maturity Date of any Class of the New Term Loans shall be no earlier than the maturity of the Term B Loans; (iii) the New Term Loans will share ratably in right of prepayment with the Term Loans pursuant to ~~an amendment~~ Section 2.05(b) or otherwise as contemplated by clause (~~an “Incremental Commitment Amendment”~~g) of this Section 2.14 below; provided that the New Term Loans may be afforded lesser payments to ~~this Agreement~~ the extent the Lenders providing such New Term Loans so agree; and~~, as appropriate,~~ (iv) the ~~other Loan Documents, executed~~ yield applicable to the New Term Loans of each Class shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each ~~Additional Lender. An Incremental Commitment Amendment~~ applicable Joinder Agreement; provided, however, that the yield applicable to such New Term Loans (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) shall not be greater than the applicable interest rate payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder), plus 0.50% per annum unless the interest rate with respect to the Term B Loan is increased so as to cause the then applicable interest rate under this Agreement on the Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder and the adjustment of any interest rate floor) to equal the yield then applicable to the New Term Loans (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) minus 0.50%; provided that, customary arrangement or commitment fees payable to the arrangers of such New Term Loans (or their respective affiliates) under this Section 2.14 shall be excluded. (g) Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the ~~Lenders providing such~~ Borrower to effect the provision of this Section 2.14, and for the avoidance of doubt, this Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. (h) The Loans and Commitments ~~(including any swingline lender~~ extended or ~~issuing lender);~~ established pursuant to this paragraph shall constitute Loans and ~~(vi)~~ Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other ~~terms~~ Loan Documents, and ~~documentation in respect thereof~~shall, to without limiting the ~~extent not consistent with this Agreement as in effect prior to giving effect to~~ foregoing, benefit equally and ratably from the ~~Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to~~ Guarantees and security interests created by the ~~Borrower~~Collateral Documents.

Appears in 1 contract

Samples: Credit Agreement (ClubCorp Holdings, Inc.)

Incremental Facilities. (a) ~~So long as no Event~~ Upon notice to the Administrative Agent (which shall promptly notify the Lenders) and subject to the terms and conditions of ~~Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right~~this Section 2.22, at any time ~~and from time to time~~ after the ~~Closing~~ Effective Date, the Borrower may solicit the existing Lenders or prospective lenders determined by the Borrower to provide (ix) ~~to request new term loan commitments under one or more new term loan credit facilities to be included~~ increases in ~~this Agreement (~~the ~~“Incremental Term Loan Commitments”), (ii) to increase the loans in any Tranche by requesting new term loan~~ commitments to ~~be added~~ the Revolving Credit Facility or to an ~~existing Tranche of Loans~~ Incremental Revolving Facility (~~the “Supplemental Term Loan Commitments”)~~such increases, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the~~ “Incremental Revolving Commitments”)) and/or up to two new tranches of revolving credit facilities (each, ~~and~~ an “Incremental Revolving Facility”) and/or (ivy) ~~to request new letter~~ incremental commitments consisting of ~~credit facility commitments under~~ one or more new ~~letter~~ tranches of ~~credit facilities to be included in this Agreement~~ term loans (each, an “Incremental Term Facility” and together with ~~the~~ any Incremental ~~Term Loan Commitments, Supplemental Term Loan~~ Revolving Commitments and ~~the~~ any Incremental Revolving ~~Commitments~~Facility, the “Incremental ~~Commitments~~Facilities”)) in an aggregate amount not to exceed $1,000,000,000, ~~provided that, after~~ on terms agreed by the ~~FourthSixth Amendment Effective Date, (i~~Borrower and the lender(s) ~~the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time~~ providing the respective Incremental ~~Commitment becomes effective, to~~ Facility (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate subject to the ~~Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~following clauses of this Section 2.22). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request~~ Any such Incremental Facility shall be unsecured. 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, (B) the amortization payments applicable to any 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 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 ~~this subsection 2.5~~ Section 2.22(a) shall set forth the requested amount and proposed terms of the ~~relevant~~ Incremental ~~Commitments~~Facilities, which proposed terms shall not be inconsistent with the requirements of Section 2.22(b). ~~The~~ 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 ~~Commitments~~ Facilities (or any portion thereof) may be ~~made~~ provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such ~~existing Lender and any such~~ bank or other financial institution, an “~~Additional~~ Incremental Lender”), ~~provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ provided that the Administrative Agent (~~such~~ 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 to be unreasonably withheld or delayed) ~~and the consent of any swingline lender~~ to such Lender’s or ~~issuing lender~~Incremental Lender’s, as the case may be, ~~that may then~~ providing such Incremental Facilities if such consent would be required ~~pursuant~~ under Section 9.04 for an assignment of Loans to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or ~~by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)~~Incremental Lender, as the case may be~~, which~~ . Any Lender not responding within such time period shall be ~~delivered~~ deemed to ~~the~~ have declined to provide any portion of such Incremental Facility. The Administrative Agent ~~for recording in~~ shall notify the ~~Register. Upon effectiveness~~ Borrower and each Lender of the ~~Lender Joinder Agreement~~ Lenders’ responses to each ~~Additional Lender shall be a Lender, and the term loan~~ request made ~~pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement~~hereunder. (de) Incremental Facilities shall become effective, and commitments thereunder shall become Commitments (~~other than Supplemental Term Loan Commitments~~and in the case of any Incremental Revolving Commitment in respect of the Revolving Credit Facility to be provided by an existing Revolving Credit Lender, shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) ~~shall become commitments~~ under this Agreement pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Incremental Facility, if any, each Incremental Lender, if any, and ~~each Additional Lender~~the Administrative Agent. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5~~Section 2.22. (f) If any Incremental Facilities are added in accordance with this Section 2.22, ~~provided, however, that (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~~ , in consultation with the ~~same Collateral securing~~ Administrative Agent, shall determine the ~~Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder~~ effective date (the “Incremental ~~Loans~~Commitments Effective Date”) and the final allocation of such Incremental Facilities. The Administrative Agent shall ~~rank pari passu in right~~ promptly notify the Lenders of ~~payment with or~~ the final allocation of such Incremental Facilities and the Incremental Commitments Effective Date. (~~at the Borrower’s option~~g) ~~junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I)~~ The effectiveness of any Incremental ~~Commitment or any Incremental Loans~~ Facility Amendment shall, unless otherwise agreed 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the ~~Collateral or ranking junior in right of payment~~Administrative Agent, ~~which shall~~ each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to ~~junior prepayment provisions~~the satisfaction on the Incremental Commitments Effective Date of each of the following conditions: (i) the Administrative Agent shall have received on ~~a pro rata basis~~ 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 exists or ~~otherwise provide for more favorable prepayment treatment for~~ would exist after giving effect thereto and all representations and warranties of the Borrower under this Agreement shall be true and correct in all material respects immediately before and after giving effect thereto (except to the extent that such ~~Term Loans than~~ 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 ~~Incremental Loans~~earlier date), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent ~~necessary~~ the proceeds of any Incremental Facility are being used to finance an acquisition or any other permitted investment, if so that the applicable interest rate margin for such 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 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 agreed by the Borrower to the Lenders under such 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 fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental ~~Term Loans~~ Facility, (x) the only representations and warranties the making and accuracy of which will be a 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 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. (h) On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) shall ~~be excluded;~~ become a Lender for all purposes of this Agreement and the other Loan Documents and (Cii) ~~any amendments~~ 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 ~~the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but~~ this Section 2.22, (i) each Revolving Lender immediately prior to the ~~time~~ effectiveness of such Incremental ~~Term Loans shall also~~ Revolving Commitments or Incremental Revolving Facility will automatically and without further act be ~~included in such calculations and (D)~~ deemed to have assigned to each existing Lender, if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunderany, and ~~in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such~~ each Incremental ~~Commitment Amendment may provide (1) for the inclusion~~Lender, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b)if any, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity providing a portion of such Incremental ~~Term Loans, as applicable, and (4) in the case of an~~ Revolving Commitments or Incremental Revolving ~~Commitment, add, or provide for adjustments to, the definition of~~ Facility (each an “~~Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for~~ Incremental Revolving Commitments ~~(and related Obligations~~Increase Lender”), and each such Incremental Revolving Commitments Increase Lender will automatically and without further act be 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 effectiveness of such Incremental Revolving Commitments or Incremental Revolving Facility and each ~~case~~ such deemed assignment and assumption of participation interests, the 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, on ~~terms agreed by~~ the ~~Borrower~~date of effectiveness of such Incremental Revolving Commitments or Incremental Revolving Facility, there are any Revolving Loans outstanding, the Administrative Agent and the ~~Lenders providing such Commitments~~ Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender (including ~~any swingline lender or issuing lender); and (vi~~each Incremental Revolving Commitments Increase Lender) having a pro-rata share of the ~~other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to~~ outstanding Revolving Loans based on each such Revolving Lender’s Applicable Revolving Percentage immediately after giving effect to such Incremental Revolving Commitments or Incremental Revolving Facility. The Administrative Agent and the ~~Incremental Commitment Amendment~~Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall ~~otherwise~~ not apply to any transaction that may be ~~reasonably satisfactory~~ effected pursuant to the ~~Borrower~~immediately preceding sentence. (j) The provisions of this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Huntington Ingalls Industries, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or~~ Subject to the conditions set forth in clause (f) ~~exists or would arise therefrom~~below, the Borrower ~~shall have the right,~~ may at any time ~~and~~ or from time to time after the ~~Closing~~ 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) ~~to request new~~ one or more tranches of additional term ~~loan commitments~~ loans or an increase in any Class of Term Loans (“Incremental Term Loans”) under one or more additional term facilities or an increase thereof (the “Incremental Term Facility”), (ii) one or more increases in the total amount of the Revolving Credit Commitments (the “Additional 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 ~~term loan~~ 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 Incremental Term Facility, the “Incremental Facilities”). Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Additional Revolving Facility Commitments, (ii) the aggregate principal amount of the Incremental Revolving Facility Commitments and (iii) the aggregate principal amount of all Incremental Term Loan Facilities incurred after the Amendment Effective Date shall not exceed (i) $100,000,000 plus (ii) additional amounts so long as the Senior Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended four fiscal quarter period for which the Borrower has delivered financial statements pursuant to Section 6.01, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding cash proceeds of any such Incremental Term Loans or Incremental Revolving Credit Commitment (provided, however, that any repayment of Indebtedness with any such proceeds shall be given pro forma effect thereto), does not exceed 2.25:1.00 (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 less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. Each Incremental Term Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Cap; provided further that the Incremental Cap shall be reduced on a dollar-for-dollar basis by any Permitted Senior Notes issued pursuant to Section 2.14(g). (b) The Incremental Revolving Facility (i) shall rank pari passu in right of payment and of security with the Revolving Facility, (ii) shall mature no earlier than the then applicable Revolving Loan 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 All-In-Yield related to any Incremental Revolving Facility exceeds the All-In-Yield relating to the Revolving Loan immediately prior to the effectiveness of the applicable Incremental Revolving Facility by more than 0.50% per annum, the Applicable Rate relating to the Revolving Loans shall be adjusted to be ~~included~~ at least equal to the All-In-Yield relating to such Incremental Revolving Facility minus 0.50% per annum, (v) may provide for a new Letter of Credit sublimit to the extent approved in ~~this Agreement~~ 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, (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 Incremental Term Facility (i) shall rank pari passu in right of payment and of security with the Revolving Facility, (ii) shall have pricing as agreed between the Borrower and such lenders (the “Incremental 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 Incremental Term Loans (the “Incremental Term Loan Commitments”); provided that the pricing in respect thereof shall be consistent with then prevailing market rates, ~~(ii)~~ and provided, further that if the All-In-Yield related to ~~increase~~ any Incremental Term Facility incurred within 18 months of the ~~loans in any Tranche~~ Amendment Effective Date exceeds the All-In-Yield relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Term Facility by ~~requesting new term loan commitments~~ more than 0.50% per annum, the Applicable Rate relating to the Term Loans shall be adjusted to be ~~added~~ at least equal to ~~an existing Tranche of Loans (~~the ~~“Supplemental~~ All-In-Yield relating to such Incremental Term ~~Loan Commitments”)~~Facility minus 0.50% per annum, (iii) ~~to request new commitments under one or more new revolving facilities to be included in this Agreement (~~shall not mature earlier than the ~~“Incremental Revolving Commitments”)~~then applicable Term Loan Maturity Date, ~~and~~ (iv) the Weighted Average Life to ~~request new letter~~ Maturity of ~~credit facility commitments under one or more new letter~~ such Incremental Term Loans shall be no shorter than the remaining average life to maturity of ~~credit facilities to be included in this Agreement~~ the Term Facility, (~~together with~~ v) the maturity date of the Incremental Term ~~Loan Commitments, Supplemental~~ Facility shall be no earlier than the Term Loan ~~Commitments~~ Maturity Date and (vi) all other terms of such Incremental Term Loans, if not consistent with the terms of the existing Term Facility, (A) will be as agreed between the Borrower and the Incremental ~~Revolving Commitments, the “~~Term Lenders providing such Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus Term Loans and (B) ~~$250 million and (ii) if any portion~~ shall not be more restrictive than the terms of ~~an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i),~~ the ~~Borrower shall have delivered a certificate~~ Term Facility unless reasonably satisfactory to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (bd) Each ~~request~~ written notice from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 shall set forth the requested ~~amount and~~ amount, proposed terms of the relevant Incremental ~~Commitments~~Term Loans or Incremental Revolving Facility and the proposed effective date for the making of such Incremental Facility or increase in the Revolving Facility (the “Incremental Effective Date”). ~~The~~ Incremental ~~Commitments (or any portion thereof)~~ Term Loans may be ~~made~~ made, and Incremental Revolving Credit Commitments and Additional Revolving Facility Commitments may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental 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 ~~existing Lender and any such~~ other bank or other financial ~~institution,~~ institution being called an “Additional Lender”); provided that (x) the Borrower shall first request any such Incremental Term Loan, ~~provided,~~ Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments from the existing Lenders prior to soliciting commitments from Additional Lenders (which existing Lender shall be presumed to have declined such request if it has not affirmatively responded to or accepted such ~~Additional Lender is not already a Lender hereunder or an Affiliate~~ request within 5 Business Days from the date of ~~a Lender hereunder, to the consent of the Administrative Agent (~~such ~~consent not to be unreasonably withheld or delayed~~request) and ~~the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6~~ (~~such consent not to be unreasonably withheld or delayed~~y) ~~(it being understood that~~ any such Additional ~~Lender that is an Affiliated~~ Lenders shall be reasonably acceptable to the Administrative Agent. No existing Lender shall be ~~subject~~ obligated to ~~the provisions of subsection 10.6(h)~~provide any Incremental Term Loans, ~~mutatis mutandis~~Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments, ~~to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment)~~unless it so agrees. (ce) ~~Supplemental~~ Commitments in respect of Incremental Term ~~Loan~~ Loans, Incremental Revolving Facility Commitments and or Additional Revolving Facility Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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~~ Borrower, each Incremental Lender, each Incremental L/C Issuer, if any, each Incremental Swing Line Lender, if any, and ~~each Additional Lender~~the Administrative Agent. An The Incremental ~~Commitment~~ Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be ~~necessary or appropriate~~necessary, including any amendments to the Schedule I, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not~~ Section 2.14. The Administrative Agent may take any and all action as may be ~~guaranteed by any Subsidiary~~ reasonably necessary to ensure all Revolving Loans in respect 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 Term Loans, (B) the Incremental~~ Additional Revolving Facility Commitments and ~~any incremental loans drawn thereunder (the “~~Incremental ~~Loans”) shall rank pari passu~~ Revolving Facility Commitments, when originally made, are included in ~~right~~ each Borrowing of ~~payment with or (at the Borrower’s option) junior to the Term~~ outstanding Revolving 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments basis. The Borrower 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Term Loans is equal pay to the applicable ~~interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that,~~ Lender any costs of the type referred in ~~determining~~ Section 3.05 in connection with the ~~applicable interest rate margins for~~ foregoing. The Borrower will use the ~~Term Loans and~~ proceeds of the Incremental Term Loans, ~~(A) original issue discount (“OID”) or upfront fees payable generally to all participating~~ Incremental Revolving Credit Commitments and/or Additional ~~Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Term Loans~~ Revolving Facility Commitments for general corporate purposes 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 ~~fees payable in connection with the Incremental Term Loans that are~~ purpose not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 Borrowerprohibited hereby.

Appears in 1 contract

Samples: Amendment Agreement (Foresight Energy Partners LP)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Parent Borrower ~~shall have the right, at any time and from time~~ may by written notice to ~~time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (x) additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (including on a delayed draw basis) (the commitments thereto, the “~~Incremental~~ New Term Loan Commitments”), (iiy) ~~to increase the loans~~ increases in Revolving Credit Commitments of any ~~Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ Class (the “~~Supplemental~~ New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (~~iii~~or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to ~~request new commitments under one or more new revolving facilities to~~ such date). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be ~~included in this Agreement~~ effective (the effective date, the “~~Incremental Revolving Commitments~~Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (~~iv)~~ which shall be deemed to ~~request new letter of credit facility commitments under one or more new letter of credit facilities~~ apply to ~~be included in this Agreement (together with the Incremental~~ New Term Loan Commitments, ~~Supplemental Term~~ mutatis mutandis)) to which such New Loan Commitments will be available and the ~~Incremental Revolving Commitments, the “Incremental Commitments”~~currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), ~~provided that, after~~ in connection with the ~~FourthSixth Amendment Effective Date, (i) the aggregate principal amount~~ incurrence of ~~Incremental Commitments permitted pursuant to~~ any Indebtedness under this ~~subsection 2.5 is limited~~Section 2.14, at the ~~time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero)~~ request of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, the Parent Borrower shall provide to the Administrative Agent a certificate certifying ~~compliance with~~ that the ~~financial test set forth~~ New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in ~~such clause (together with~~ reasonable detail and shall provide the calculations ~~demonstrating compliance with such ratio)~~and basis therefor. ~~Any loans made in respect of~~ The Borrowers may approach any ~~such Incremental Commitment~~ Lender or any Person (other than ~~Supplemental Term~~ a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the condition in Section 7.1(b) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) satisfied (it being understood that ~~any~~ all references to “the date of such ~~Additional Lender~~ Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that ~~is an Affiliated Lender~~ the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the ~~provisions of subsection 10.6(h~~requirements set forth in Section 5.4(e), ~~mutatis mutandis~~(iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the ~~same extent~~ New Loan Commitments, as if applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Parent Borrower and agreed to by Lenders providing such ~~Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental~~ New Term Loan ~~Commitments shall become commitments under~~ Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement ~~pursuant to~~ or (b) as part of a ~~supplement specifying~~ Series of existing Term Loans for all purposes of this Agreement. On and after the ~~Tranche to be increased~~Increased Amount Date, ~~executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each~~ Additional ~~Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which~~ Revolving Credit Loans shall be ~~delivered to the Administrative Agent for recording in the Register. Upon effectiveness~~ designated a separate Series of ~~the Lender Joinder Agreement each~~ Additional ~~Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche,~~ Revolving Credit Loans for all ~~intents and~~ purposes of this Agreement. (db) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (~~other than Supplemental Term~~ a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the 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, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to 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 (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become ~~commitments under this Agreement pursuant~~ a Lender with respect to ~~an amendment~~ the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (~~an “Incremental Commitment Amendment”~~not to be unreasonably withheld, delayed or conditioned) to ~~this Agreement and~~such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as ~~appropriate~~applicable, to such Lender or Incremental Revolving Loan Lender. (c) On or after the ~~other~~ date on which any New Term Loan ~~Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent~~ Commitments of any ~~other Lender~~Series are effective, ~~effect such amendments~~ subject to ~~any Loan Documents as may be necessary or appropriate, in~~ the ~~opinion~~ satisfaction of the ~~Borrower~~ foregoing terms and ~~the Administrative Agent~~conditions, ~~to effect the provisions of this subsection 2.5, provided, however, that~~ (i) each Lender with a New Term Loan Commitment (Aeach, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan” and, together with 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 Term Revolving Credit Loans, ~~(B) the Incremental Commitments and any incremental loans drawn thereunder (~~the “Incremental Loans”) in an amount up 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 New 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 on terms and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans (calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the mandatory prepayments of the New Term Loans shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu in right of payment and security with the then existing Initial Term Loans, if the Effective Yield for Eurocurrency Loans in respect of such New Term Loans exceeds the Effective Yield for Eurocurrency Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for Eurocurrency Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for Eurocurrency Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher Eurocurrency floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Eurocurrency floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans (except to the extent permitted by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date. (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with ~~or (at~~ the ~~Borrower’s option) junior to~~ Revolving Credit Loans and the 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans);~~ , (ii) ~~no Lender will be required to provide~~ any such Incremental ~~Commitment unless it so agrees; (iii)~~ Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the ~~maturity date~~ Initial Revolving Credit Commitments and related Revolving Credit Loans at the ~~weighted average life to maturity~~ time of incurrence of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Revolving Credit Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower shall have the right, at without the consent of any ~~time and~~ Lender, upon notice to the Administrative Agent, on one or more occasions from time to time after the Closing Date and (x) prior to the Initial Revolving Maturity 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”), (ii)~~ to increase the ~~loans in~~ Initial Revolving Commitments under any ~~Tranche~~ Revolving Facility by requesting new ~~term loan~~ revolving credit commitments to be added to such Revolving Facility (any such increase, an ~~existing Tranche of Loans~~ “Incremental Revolving Facility” and any loans made pursuant to an Incremental Revolving Facility, “Incremental Revolving Loans”) and (y) prior to the ~~“Supplemental~~ Initial Term Loan ~~Commitments~~Maturity Date, to establish one or more additional delayed draw term loan facilities (each such establishment of a delayed draw term loan facility, an “Incremental Delayed Draw Facility”), to increase the funded term loans under the Initial Term Facility and/or to establish one or more separate term loan tranches (any such establishment or increase, including any Incremental Delayed Draw Facility, an “Incremental Term Facility” and, together with any Incremental Revolving Facility, collectively, the “Incremental Facilities”; any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans” and, together with any Incremental Revolving Loans, collectively, the “Incremental Loans”) in an aggregate principal amount as of any date of determination not to exceed the Incremental Cap as of such date; provided that: (i) subject to Section 1.10 with respect to an Incremental Facility the proceeds of which are to be used to provide financing for a Limited Condition Transaction, (A) all representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (without duplicating any materiality qualifiers) immediately after giving effect to such Incremental Facility and (B) no Event of Default shall have occurred and be continuing immediately after giving effect thereto; (ii) the final maturity date of any Incremental Term Facility structured as a separate term loan tranche or any Incremental Delayed Draw Facility (once funded) shall be no earlier than the Initial Term Loan Maturity Date, and the Weighted Average Life to Maturity of any such Incremental Term Facility structured as a separate term loan tranche or any such Incremental Delayed Draw Facility (once funded) shall not be shorter than the Weighted Average Life to Maturity of the Initial Term Facility; (iii) each Incremental Facility shall be in a minimum principal amount of $2.5 million and integral multiples of $500,000 in excess thereof (or such lesser principal amount as may then be available under the Incremental Cap); (iv) with respect to ~~request new commitments under one~~ any Incremental Term Facility structured as a separate term loan tranche or any Incremental Delayed Draw Facility, in each case, entered into after the Closing Date, the All-In Yield applicable to any such Incremental Facility shall not be more ~~new revolving facilities~~ than 0.50% higher than the corresponding All-In Yield applicable to ~~be included~~ the Initial Term/DDTL Facility, unless the Applicable Margin with respect to the Initial Term/DDTL Facility is increased (in accordance with the definition of “All-In Yield”) by an amount equal to the difference between the All-In Yield with respect to such Incremental Facility, as applicable, and the All-In Yield on the Initial Term/DDTL Facility minus 0.50% (this ~~Agreement~~ clause (iv), the “MFN Protection”); (v) any Incremental ~~Revolving Commitments”~~Term Facility structured as a separate term loan tranche or any Incremental Delayed Draw Facility (A) may rank pari passu or junior in right of payment and/or with respect to security with the other Credit Facilities or may be unsecured, (B) that is secured shall not be secured by any assets other than the Collateral (including any assets that are substantially concurrently added to the Collateral), (C) that is guaranteed shall not be guaranteed by any Person other than a Loan Guarantor (including any Person that is substantially concurrently joined as a Loan Guarantor), and (ivD) that is unsecured or that is secured by a Lien on the Collateral that is junior to ~~request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with~~ the ~~Incremental~~ Lien securing the Initial Term ~~Loan Commitments, Supplemental Term Loan Commitments~~ Loans and the ~~Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date~~Delayed Draw Term Loans, (i) shall have a maturity date that is no earlier than the date that is ninety-one (91) days following the Latest Term Loan Maturity Date at the time of the incurrence thereof, (ii) shall be documented under separate facility documentation, and (iii) shall be subject to an applicable Intercreditor Agreement; (vi) except as otherwise permitted or required by this Section 2.22, (A) an Incremental Term Facility in the form of an increase of funded term loans under the Initial Term Facility shall be on the terms substantially identical to the terms of the Initial Term Facility (including Applicable Margin, but excluding upfront fees), and (B) an Incremental Term Facility structured as a separate term loan tranche or any Incremental Delayed Draw Facility shall be on terms as agreed by and among the Borrower and the applicable Lenders providing all or any portion of such Incremental Term Facility or Incremental Delayed Draw Facility, as applicable, provided that all other terms applicable to any Incremental Term Facility structured as a separate term loan tranche or Incremental Delayed Draw Facility, as applicable, if not consistent with the Initial Term Facility, shall be (1) not materially more favorable (taken as a whole) than the terms of the Initial Term Facility, (2) offered to the Initial Term Lenders, (3) applicable only after the Initial Term Loan Maturity Date or (4) reasonably acceptable to the Blackstone Representative; (vii) the aggregate principal amount of all Incremental ~~Commitments permitted pursuant~~ Revolving Facilities shall not exceed $10.0 million, and the terms of any Incremental Revolving Facility shall be identical to ~~this subsection 2.5 is limited~~the terms of the Initial Revolving Facility (including the Applicable Margin and Commitment Fees, ~~at the~~ but excluding upfront fees); (viii) except as separately agreed from time ~~the respective Incremental Commitment becomes effective,~~ to ~~(A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ time between the Borrower and any Lender, no Lender shall be obligated to provide a commitment in respect of any Incremental Facility, and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender; (ix) no Incremental Facility or Incremental Loan (or the establishment, effectiveness, provision, implementation, availability or funding thereof) shall require the approval of any existing Lender (other than in its ~~Restricted Subsidiaries at such time plus (B) $250 million and (ii)~~ capacity, if any, as a Lender providing all or part of a commitment in respect of any ~~portion of an~~ Incremental ~~Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i~~Facility), the Administrative Agent (except as otherwise required by this Section 2.22), any other Secured Party or any other Person; and (x) unless the Borrower ~~shall have delivered a certificate to~~ otherwise notifies the Administrative Agent, ~~certifying compliance with~~ if all or any portion of any Incremental Facility would be permitted to be incurred or implemented under the ~~financial test set forth~~ Incremental Incurrence-Based Amount, such Incremental Facility (or the relevant portion thereof) shall be deemed to have been incurred or implemented in reliance on the Incremental Incurrence-Based Amount prior and without giving effect to the Fixed Incremental Amount (including any usage thereof), and, in the event that any Incremental Facility (or a portion thereof) incurred under the Fixed Incremental Amount subsequently meets the criteria of an Incremental Facility incurred under the Incremental Incurrence-Based Amount, the Borrower, in its sole discretion, at such ~~clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of~~ time may divide and classify or reclassify any such Incremental ~~Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan~~ Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution,~~ as an ~~“Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to~~ Incremental Facility incurred under the ~~consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed)~~ Incremental Incurrence-Based Amount and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such Fixed 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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 Amount shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by ~~such amount; (v) such Incremental Commitment Amendment may provide (1) for~~ the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 Borroweramount so reclassified.

Appears in 1 contract

Samples: Credit Agreement

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Parent Borrower ~~shall have the right, at any time and from time~~ may by written notice to ~~time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (x) additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (including on a delayed draw basis) (the commitments thereto, the “~~Incremental~~ New Term Loan Commitments”), (iiy) ~~to increase the loans~~ increases in Revolving Credit Commitments of any ~~Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ Class (the “~~Supplemental~~ New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (~~iii~~or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to ~~request new commitments under one or more new revolving facilities to~~ such date). Each such notice shall specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be ~~included in this Agreement~~ effective (the effective date, the “~~Incremental Revolving Commitments~~Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (~~iv)~~ which shall be deemed to ~~request new letter of credit facility commitments under one or more new letter of credit facilities~~ apply to ~~be included in this Agreement (together with the Incremental~~ New Term Loan Commitments, ~~Supplemental Term~~ mutatis mutandis)) to which such New Loan Commitments will be available and the ~~Incremental Revolving Commitments, the “Incremental Commitments”~~currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), ~~provided that, after~~ in connection with the ~~FourthSixth Amendment Effective Date, (i) the aggregate principal amount~~ incurrence of ~~Incremental Commitments permitted pursuant to~~ any Indebtedness under this ~~subsection 2.5 is limited~~Section 2.14, at the ~~time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero)~~ request of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, the Parent Borrower shall provide to the Administrative Agent a certificate certifying ~~compliance with~~ that the ~~financial test set forth~~ New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in ~~such clause (together with~~ reasonable detail and shall provide the calculations ~~demonstrating compliance with such ratio)~~and basis therefor. ~~Any loans made in respect of~~ The Borrowers may approach any ~~such Incremental Commitment~~ Lender or any Person (other than ~~Supplemental Term~~ a natural Person) to provide all or a portion of the New Loan Commitments~~) shall be made by creating~~ ; provided that any Lender offered or approached to provide all or a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms portion of the ~~relevant Incremental Commitments. The Incremental~~ New Loan Commitments (may elect or ~~any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution~~decline, ~~an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder~~in its sole discretion, to ~~the consent of the Administrative Agent (~~provide a New Loan Commitment. In each case, such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 New Loan Commitments shall become ~~commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto~~ effective as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the~~ applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the ~~Incremental~~ condition in Section 7.1(b) shall be satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments ~~will~~ may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent 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 5.4(e), (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary ~~of the Borrower~~ other than any Credit Party and (y) if secured, shall not be secured by any assets other than the ~~Subsidiary Guarantors~~Collateral and (iv) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Parent Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the 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, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and ~~will~~ (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be ~~secured on~~ deemed for all purposes a ~~pari passu or~~ Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (~~at the Borrower’s option~~a “New Revolving Credit Loan”) ~~junior basis by the same Collateral securing the Term~~ and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (Bii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. On or after the date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan” and, together with the Incremental ~~Commitments and any incremental loans drawn thereunder (~~Revolving Credit Loans, the “Incremental Loans”) in an amount up 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 New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans (or the then existing Amendment No. 3 Term Loans (excluding the effects of any amortization of such New Term Loans in an amount no greater than 1.00% per annum and calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the mandatory prepayments of the New Term Loans shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans and Amendment No. 3 Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans, or the Amendment No. 3 Term Loans, as applicable, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu in right of payment and security with the then existing Initial Term Loans, if the Effective Yield for Term SOFR Loans in respect of such New Term Loans exceeds the Effective Yield for Term SOFR Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for Term SOFR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for Term SOFR Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the existing Initial Term Loans or the existing Amendment No. 3 Term Loans (except to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) or (iv) above), they shall be either (A) reasonably satisfactory to the Administrative Agent (provided that no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 3 Term Loans, as applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the Initial Term Loan Maturity Date. Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, any such Incremental Revolving Credit Commitments or (Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the ~~Borrower’s option~~time of incurrence of such Incremental Revolving Credit Commitments, the borrowing and repayment (except for (1) ~~junior to~~ payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the ~~Term Loans~~ maturity date of the Incremental Revolving Credit Commitments, and (C3) no repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to 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~~ Revolving Credit Commitments after the Term Loans and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which associated Increased Amount Date shall be ~~subject to junior prepayment provisions)~~ made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, subject to Section 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or ~~otherwise provide for more favorable prepayment treatment for~~ issued in respect of such ~~Term~~ Series), the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, assignments and participations of Incremental ~~Loans~~Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and the pricing, fees, maturity and other terms and provisions (other than with respect to matters contemplated by clauses (i), ~~provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans);~~ (ii~~) no Lender will be required to provide any such Incremental Commitment unless it so agrees;~~ ), (iii), (iv), (v), (vi) and (vii) of this Section 2.14(e), which shall be as set forth above) of the Additional Revolving Credit Loans may be different and shall be either (A) determined by the Parent Borrower and the Lenders thereunder so long as the final maturity date and the weighted average ~~life to~~ maturity of ~~such Incremental Commitments~~ any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be no earlier ~~than~~ than, or shorter than, as the case may be, the ~~Maturity Date~~ maturity date or the weighted average life to maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loanslife, as applicable, ~~and (4) in~~ of the ~~case of an Incremental~~ Initial Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Credit Commitments (and related ~~Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments~~ Revolving Credit Loans or (~~including any swingline lender or issuing lender); and (vi~~B) ~~the other~~ consistent with market terms and ~~documentation in respect thereof~~conditions, to taken as a whole, at 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~~time of incurrence or effectiveness of such Additional Revolving Credit Loans. [Reserved].

Appears in 1 contract

Samples: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i~~this Agreement in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of 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~~test). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (in the case of Incremental Commitments denominated in Dollars or the Dollar Equivalent thereof in the case of Incremental Commitments denominated in any Designated Foreign Currency (other than Canadian Dollars or Euros)), in a minimum aggregate amount of at least C$10,000,000 and in integral multiples of C$5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Canadian Dollars) or in a minimum aggregate amount of at least €7,500,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each case, such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000, C$10,000,000 or €7,500,000, as applicable, if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Line Lender (if any) or any Issuing Bank (in each case, such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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~~ or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the ~~Term Loans~~Cash Flow Facilities Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Cash Flow Intercreditor Agreement, a 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 payment with or (at the Borrower’s option) junior to the ~~Term Loans~~ Cash Flow Facilities Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any ~~Collateral~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the ~~Term Loans~~ Cash Flow Facilities Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 acquisition) or Recovery Event or from Excess Cash Flow, to the ~~applicable~~ extent the Net Available Cash 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (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 Initial Revolving Maturity Date; (iv) the maturity date and the weighted average life to maturity of ~~such~~ any 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith, which determination shall be conclusive), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as ~~applicable~~applicable or (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans~~ syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the Cash Flow Facilities Obligations and with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower under any Incremental Term Loan ~~Commitment~~ Commitment, made on or prior to the 12-month anniversary of the Third Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for ~~any~~ the Tranche B Term Loans by more than 50 75 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the applicable Tranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans~~ Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 75 basis ~~points~~points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable Initial 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 such Initial Term Loans or any Incremental Term ~~Loan~~ Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable 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,~~ arrangement or structuring fees payable in connection with the Incremental Term Loans or any 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~~ shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on ~~any~~ the applicable Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ Closing Date but prior to the effective time of such Incremental Term Loans shall also be included in such ~~calculations and~~ calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ the applicable 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 such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such ~~amount; (v) such Incremental Commitment Amendment may provide (1) for~~ amount to the ~~inclusion, as appropriate, of~~ extent necessary to adjust the ~~Additional Lenders in any required vote or action of~~ applicable Existing Interest Rate to be equal to the ~~Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder~~applicable Adjusted Interest Rate, (2E) ~~class voting and other class protections for any additional credit facilities, (3) for~~ if the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Incremental Term Loans ~~and weighted average life~~ include an interest rate floor lower than the interest rate floor applicable to ~~maturity~~ the applicable Tranche of ~~such~~ Initial 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, add,~~ or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including do not include any ~~swingline lender or issuing lender); and (vi) the other terms and documentation in respect thereof~~interest rate floor, to the extent ~~not consistent with this Agreement as~~ a reduction in the interest rate floor for such Initial Term Loans would cause a reduction in the interest rate then in effect ~~prior to giving effect~~ thereunder, an amount equal to the ~~Incremental Commitment Amendment, shall otherwise be reasonably satisfactory~~ difference between the interest rate floor applicable to the ~~Borrower.~~Initial 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

Appears in 1 contract

Samples: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(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 new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this subsection ~~2.5 is limited~~2.9 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under this Agreement in compliance with subsection ~~7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~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)~~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 and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this subsection ~~2.5~~ 2.9 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 5.0 million and in integral multiples of $~~1,000,000~~ 1.0 million in excess ~~thereof~~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 ~~2.5~~ 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 any existing Lender or by any other bank or financial institution (any such ~~existing Lender and any such~~ bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to 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 or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 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 O V-1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P V-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.9 (including to subsection 2.2(b) hereof) Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a ~~Lender,~~ 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~~or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~for all intents and purposes of this Agreement~~as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ applicable Incremental 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 subsection ~~2.5,~~ 2.9; provided, however, that (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 ~~Term Loans~~First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 ~~Term Loans~~ First 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 ~~Term Loans~~ First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 ~~applicable~~ 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 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with subsection 10.1(d)(v)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (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 Initial Revolving Maturity Date; (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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, ~~that~~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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as applicable); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ 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~~ or under any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments Credit Facility Incurred pursuant to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: First Lien Credit Agreement

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at~~ At any time and from time to time ~~after~~ prior to the ~~Closing~~ Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (i3) Business Days’ prior notice to the Administrative Agent (or such lesser number of days reasonably acceptable to the Administrative Agent), request ~~new term loan commitments under~~ to add one or more new ~~term loan~~ credit facilities ~~to be included in this Agreement~~ (~~the~~ each, an “Incremental Facility”) and consisting of one or more additional tranches of term loans (each, an “Incremental Term ~~Loan Commitments~~Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Credit Facility”), or a combination thereof, provided that (i) 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 ~~increase the loans~~ calculation adjustments set forth in Section 1.11 with respect to any ~~Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”)~~Incremental Facility being incurred in connection with a Limited Condition Acquisition, (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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of all Incremental ~~Commitments permitted pursuant to this subsection 2.5 is limited,~~ Facilities at the time of issuance or incurrence shall not exceed the ~~respective~~ Maximum Additional Debt Amount at such time, and (iii) with respect to any secured Incremental ~~Commitment becomes effective,~~ Term Facility (other than any Incremental Term Facility ranking junior in right of payment or with respect to 94 US-DOCS\140506888.9146702970.6 (b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the ~~aggregate principal amount (not less than zero) of Indebtedness~~ 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 ~~permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ consistent in all material respects with the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ Collateral Documents and (iiI) if ~~any portion of an Incremental Commitment is to be incurred in reliance~~ secured on ~~subsection 7.1(b)(xiv)(i)~~a pari passu basis with the Obligations, the ~~Borrower~~ 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 on behalf of the holders of such Incremental Term Facility shall have ~~delivered~~ become party to a ~~certificate~~ second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, ~~certifying compliance~~ (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 ~~financial test~~ 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 ~~such~~ this clause (~~together~~ 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 ~~calculations demonstrating compliance~~ respect to Term Loans, and with ~~such ratio). Any loans made~~ respect to an Incremental Term Facility ranking junior in respect of ~~any~~ 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 class of 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 to the 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 95 US-DOCS\140506888.9146702970.6 (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 ~~Supplemental Term Loan~~ 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 ~~made~~ 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 creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereofCollateral. (bd) Each ~~request~~ notice from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental ~~Commitments~~Facility. ~~The Incremental Commitments (or any portion thereof) may be made by any~~ Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunderIncremental 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 ~~Administrative Agent~~ L/C Issuers (such consent not to be unreasonably ~~withheld~~ withheld, delayed or ~~delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed~~conditioned) (~~it being understood that~~ any such bank, financial institution, existing Lender or other Person being called an “Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase SupplementLender”) ~~or by each Additional Lender that is~~ and, if not an existing Lender substantially in the form attached hereto as Exhibit P (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 already a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become ~~commitments~~ a Lender under this Agreement pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower~~ Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and ~~each~~ the 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 if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to any Loan Documents as may be ~~necessary~~ necessary, advisable or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 four96 US-year life to maturity); (B) any arrangement, structuring or other 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.DOCS\140506888.9146702970.6

Appears in 1 contract

Samples: Credit Agreement (Tutor Perini Corp)

Appears in 1 contract

Samples: Credit Agreement (DT Midstream, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Parent 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~~ may on one or more ~~new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”)~~occasions, ~~(ii) to increase the loans in any Tranche~~ by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate written notice to the Administrative Agent, ~~certifying compliance~~ request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that, at the time of (and after giving effect to) the establishment of any Incremental Revolving Commitments or Incremental Term Commitments, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Commitments established pursuant to this Section 2.21, together with the ~~financial test set forth in~~ aggregate amount of all Incremental Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(a)(xx), shall not exceed the greater of (A) $300,000,000 and (B) an amount such ~~clause~~ that, after giving effect to the making of such Incremental Revolving Commitments (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of~~ and assuming any such Incremental ~~Commitment~~ Revolving Commitments are fully drawn) and Incremental Term Loans and the making of any other Indebtedness incurred substantially simultaneously therewith, the Senior Secured Net Leverage Ratio, calculated on a pro forma basis, is no greater than 2.50 to 1.00. Each such notice shall specify (~~other than Supplemental~~ A) the date on which the Parent Borrower proposes that the Incremental Revolving Commitments or the Incremental Term ~~Loan~~ Commitments) , as applicable, shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5~~ effective, which shall be in a ~~minimum aggregate~~ 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 ~~at least $15,000,000~~ the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) 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 Parent Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in ~~integral multiples~~ the case of ~~$1,000,000 in excess thereof~~any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lender). (b) ~~Each request from~~ The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the ~~Borrower pursuant~~ Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to ~~this subsection 2.5~~ be made thereunder shall be, except as otherwise set forth herein or in the ~~requested amount and proposed terms~~ applicable Incremental Facility Agreement, identical to those of the ~~relevant Incremental Commitments. The Incremental~~ Tranche A Term Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the ~~consent of~~ Tranche A Term Loans; provided that (i) the interest rate margins with respect to any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender Incremental Term Loans shall be ~~subject to the provisions of subsection 10.6(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 to be increased, executed agreed by the Borrower and ~~each increasing Lender substantially~~ the lenders in respect thereof, (ii) any Incremental Term Loan shall have terms, in Parent Borrower’s reasonable judgment, customary for a term loan under then-existing market convention, (iii) subject to clause (ii) above, the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which amortization schedule with respect to any Incremental Term Loans 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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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~~ agreed 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,~~ lenders in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans)respect thereof, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of ~~such~~ any Incremental ~~Commitments~~ Term Loans shall be no ~~earlier~~ shorter than ~~or shorter than, as~~ the ~~case may be, the Maturity Date or the~~ remaining weighted average life to maturity of the Tranche A Terms Loans, (iv) no Incremental Term ~~B-45 Loans (other than (a) any Incremental Commitments and related~~ Maturity Date with respect to Incremental Term Loans ~~constituting Initial Term Loan Refinancing Debt that may provide for an~~ shall be earlier ~~maturity date and/or a shorter average life to maturity~~ than the later of (1) the Tranche A Maturity Date and (2) the Latest Maturity Date then in effect with respect to Extended Term ~~B-45~~ Loans, ~~and~~ (bv) ~~an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings~~except as set forth above, ~~that, subject to customary conditions, would either~~ the Incremental Term Loans shall 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~~ treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of ~~the~~ such Incremental Term ~~B-45~~ Loans; provided further that any Incremental Term Loans may add additional covenants or ~~the weighted average life to maturity~~ events of ~~the Term B-45 Loans, as applicable); (iv) the interest rate margins~~ default not otherwise applicable to the ~~loans made pursuant~~ Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental ~~Commitments~~Facility so long as all Lenders receive the benefits of such additional covenants, ~~and~~ events of default or more restrictive covenants, (vi) to the ~~amortization schedule~~ extent the terms applicable to any Incremental Term ~~Loans~~Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vii) any Incremental Facility shall have the same Guarantees as, shall ~~be determined by~~ rank pari passu with respect to the ~~Borrower~~ Liens on the Collateral and in right of payment with the 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 any Term Loans ~~by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased~~ (except to the extent ~~necessary so~~ that the ~~applicable interest rate margin for such Term Loans is equal to the applicable interest rate margins~~ related Incremental Facility Agreement provides for such Incremental Term ~~Loan Commitment minus 50 basis points; provided further that~~Loans to be treated less favorably, in determining the applicable interest rate margins for the 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 such 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 fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing case such Incremental Term Loans shall be ~~excluded; (C) any amendments~~ subject to ~~the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but prior to the time of such Incremental Term Loans shall also be included~~ a customary intercreditor agreement in ~~such calculations~~ form and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 substance reasonably satisfactory to the Administrative Agent). Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, 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 the foregoing, in no event shall there be more than seven maturity dates in respect of the Credit Facilities (including any Extended Term Loans, Extended Revolving Commitments, Replacement Term Loans or Replacement Revolving Facilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Parent Borrower., each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Parent Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) 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 Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) 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 on and as of such date,

Appears in 1 contract

Samples: Credit Agreement (Trimas Corp)

Incremental Facilities. (a) So long as no Specified Event of Default ~~under subsection 8(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, including delayed draw term loan commitments (the “New Delayed Draw Term Loan Commitment”), under one or more new term loan credit facilities to be included in this Agreement (the “"Incremental Term Loan Commitments”"), (ii) to increase ~~the~~ existing term loans ~~in any Tranche~~ under this Agreement by requesting new term loan commitments to be added to an existing ~~Tranche~~ tranche of ~~Loans~~ term loans under this Agreement (the “Supplemental Term Loan Commitments”), (iii) to increase the existing Revolving Commitments by requesting new Revolving 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 (ivv) 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~~ Incremental Revolving Commitments, the “Incremental Commitments”"), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) (x) the aggregate ~~principal~~ amount of Incremental Commitments (other than New Delayed Draw Term Loan Commitments if the Borrower, at its option, has elected to establish such New Delayed Draw Term Loan Commitments in compliance with the immediately following subclause (y)) permitted pursuant to this ~~subsection 2.5 is limited~~Section 2.25 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective~~effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), the Maximum Incremental Facilities Amount and (y) if the Borrower, at its option, has elected to establish New Delayed Draw Term Loan Commitments in compliance with this subclause (y), the aggregate amount of such New Delayed Draw Term Loan Commitments shall be unlimited at the time such New Delayed Draw Term Loan Commitments are established; provided that, (A) term loans may only be incurred in respect of such New Delayed Draw Term Loan Commitments if, at the ~~aggregate principal amount~~ time of Incurrence thereof (~~not less than zero)~~ and after giving effect to the application of ~~Indebtedness that is permitted~~ proceeds of any such term loans to ~~be Incurred under subsection 7.1(b)(xiv)(i) by~~ refinance any other Indebtedness), the ~~Borrower or its Restricted Subsidiaries~~ Maximum Incremental Facilities Amount at such time ~~plus~~ would not be exceeded, (B) ~~$250 million~~ prior to the time that any such New Delayed Draw Term Loan Commitments are funded, any such New Delayed Draw Term Loan Commitments that have not yet been funded shall not be included in the determination of “Required Lenders” (except for the purposes of any amendment or waiver of the conditions to funding of such New Delayed Draw Term Loan Commitments) and (C) to the extent that pro forma effect is given to the entire committed amount of any such New Delayed Draw Term Loan Commitments pursuant to the last parenthetical of clause (ii) of the definition of “Maximum Incremental Facilities Amount” at the time of effectiveness of such commitment, such New Delayed Draw Term Loan Commitments shall be treated as fully drawn solely for purposes of calculating any Incurrence Based Amounts (including any Financial Incurrence Tests) governing the drawings of such New Delayed Draw Term Loan Commitments and (ii) if any portion of an Incremental Commitment (or any term loan incurred in respect of New Delayed Draw Term Loan Commitments) is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, a Senior Officer or another Responsible Officer of the Borrower shall have delivered (or, in the case of any term loan Incurred in respect of New Delayed Draw Term Loan Commitments, as a condition to the funding of such term loans) a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause on each date of funding of such term loans (~~together~~ unless pro forma effect is given to the entire committed amount of any such New Delayed Draw Term Loan Commitments pursuant to the last parenthetical of clause (ii) of the definition of “Maximum Incremental Facilities Amount”, in which case such certificate shall be delivered concurrently with ~~calculations demonstrating compliance with~~ the date of effectiveness of such ~~ratio~~commitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new ~~Tranche~~tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.25 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 1,000,000 and in integral multiples of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or 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 2.5~~ Section 2.25 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to~~ ; provided that the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Lender (if any) or any L/C Issuer (in each case, such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent~~ shall be required. The Borrower may agree, in its sole discretion, to accept a lesser amount of any ~~swingline lender~~ Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(hpermitted), ~~mutatis mutandis,~~ then the Borrower shall have the right to allocate such commitments on whatever basis the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment)~~Borrower determines is appropriate. (c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the ~~Tranche~~ 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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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~~ or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to increase amortization payments or increase interest rate margins or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing tranche of term loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Section 2.25(c). (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ Borrower, each applicable Incremental Lender and ~~each Additional Lender~~the Administrative Agent. 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 ~~subsection 2.5,~~ Section 2.25; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of ~~the Borrower~~ Holdings other than the ~~Subsidiary Guarantors~~Loan Parties, and will be secured on a pari passu or (at the Borrower’s option, subject to the terms hereof) junior basis by the same Collateral securing the ~~Term Loans~~Obligations hereunder (so long as any such Incremental Commitments (and related Obligations) are subject to an Intercreditor Agreement) or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and 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 ~~Term Loans~~ Obligations hereunder pursuant to a Subordination Agreement 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~~ Lien on any ~~Loan Party~~ asset that do does not also secure the ~~Term Loans~~ Obligations hereunder and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)[reserved]; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date ~~and the~~ or weighted average life to maturity of ~~such~~ any Incremental ~~Commitments~~ Commitment shall be no earlier ~~than or shorter~~ than, as and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the ~~case may be~~latest maturity date of (x) with respect to Incremental Revolving Commitments, Supplemental Revolving Commitments and Incremental Letter of Credit Commitments, the ~~Maturity Date or the weighted average life~~ Revolving Loans and (y) with respect to ~~maturity of the~~ Incremental Term ~~B-45 Loans (other than (a) any Incremental~~ Loan Commitments and ~~related~~ Supplemental Term Loan Commitments, the Incremental Term ~~Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45~~ Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) [reserved]; (v) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (vvi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Incremental Lenders in any required vote or action of the “Required Lenders~~, Supermajority Lenders~~ ” or of the Lenders of each ~~Tranche~~ tranche hereunder, (2) class voting and other class protections for any additional credit facilities, ; provided that no such class protection provisions shall directly and adversely impact any voting rights of any other Lenders and (3) for the amendment of ~~the~~ certain definitions ~~of “Additional Permitted Obligations”~~ and ~~“Refinancing Indebtedness” and subsection 7.8(b)~~provisions, in each case only to extend the maturity date and the weighted average life to maturity ~~requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans~~ requirements with respect 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender)term loans; and (vivii) 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.

Appears in 1 contract

Samples: Credit Agreement (DoubleVerify Holdings, Inc.)

Incremental Facilities. Subject to the Senior Facilities Documentation Principles, substantially the same as set forth in the Existing Credit Agreement (as modified by the Amendment). The Operative Documents will permit the Company to (a) ~~So long~~ add one or more incremental term loan facilities and/or increase commitments under the Term Facility (each, an “Incremental Term Facility”) and (b) add one or more revolving credit facilities and/or increase commitments under the Revolving Facility (any such revolving credit facility or increase, an “Incremental Revolving Facility”; the Incremental Revolving Facilities and the Incremental Term Facilities are collectively referred to as ~~no Event of Default under subsection 8(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,~~ “Incremental Facilities”); provided that (i) ~~to request new term loan commitments under one or more new term loan credit facilities to be included~~ the Incremental Facilities when aggregated with other Indebtedness incurred in ~~this Agreement~~ reliance on the Fixed Incremental Amount do not exceed in the aggregate the sum of (A) the ~~“Incremental Term Loan Commitments”),~~ greater of (iix) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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”), $625 million and (ivy) ~~to request new letter~~ 100% of ~~credit facility commitments under one or more new letter~~ Consolidated EBITDA (as defined in the Existing Credit Agreement) at the time of ~~credit facilities to be included in~~ determination (this ~~Agreement~~ clause (~~together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments~~A), the “Incremental ~~Commitments~~Dollar Amount”~~), provided that, after the FourthSixth Amendment Effective Date, (i~~) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) ~~$250 million~~ all voluntary prepayments and voluntary commitment reductions of the Senior Facilities made prior to such date of incurrence (except (I) any indebtedness incurred pursuant to clause (C) and (II) any prepayments financed with the incurrence of indebtedness) plus (C) additional amounts (including at any time prior to utilization of amounts set forth in clause (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio (as defined in the Existing Credit Agreement, but assuming all commitments under any Incremental Revolving Facility are fully drawn and excluding the cash proceeds of any borrowing under any such Incremental Facilities and limited to netting of (i) all unrestricted cash and cash equivalents and (ii) VOI escrow deposits in an amount not to exceed $75 million) as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, on a pro forma basis after giving effect to such Incremental Facility, does not exceed Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Facilities are incurred in connection with a Permitted Acquisition or other similar investment not prohibited by the Operative Documents, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to the consummation of such Permitted Acquisition), (the amounts under the Incremental Dollar Amount and the foregoing clause (B), the “Fixed Incremental Amount” and, the amounts under the foregoing clause (C), the “Ratio Incremental Amount”). “Applicable Consolidated First Lien Net Leverage Ratio Level” means 2.25:1.00. The Company may elect to use the Ratio Incremental Amount prior to the Fixed Incremental Amount or any combination thereof, and any portion of an any Incremental ~~Commitment is to be~~ Facility incurred in reliance on ~~subsection 7.1(b)(xiv)(i),~~ 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). Any loans made in respect of any such Fixed Incremental ~~Commitment (other than Supplemental Term Loan Commitments)~~ Amount shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lenderreclassified, as the ~~case~~ Company may ~~be, that may then be required pursuant~~ elect from time to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)time, 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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan incurred under the ~~applicable Tranche, for all intents and purposes of this Agreement. (d)~~ Ratio 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, Amount if 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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to Company meets the applicable ~~Term Loans (other than~~ ratio for the Fixed Incremental ~~Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions)~~ Amount at such time on a pro ~~rata~~ forma basis, and if any applicable ratio for the Ratio Incremental Amount would be satisfied on a pro forma basis ~~(or otherwise provide for more favorable prepayment treatment for such Term Loans than~~ as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental ~~Loans)~~Facility, ~~provided that~~ such reclassification shall be deemed to have automatically occurred whether or not elected by the Company. In the event the Fixed Incremental Amounts are intended to be utilized together with any Ratio Incremental ~~Loans constituting Initial Term Loan Refinancing Debt may provide~~ Amount in a single transaction or series of related transactions, compliance with or satisfaction of any applicable financial ratios or tests for ~~more favorable amortization payments than~~ the portion of such indebtedness or other applicable ~~Term Loans);~~ transaction or action to be incurred under the Ratio Incremental Amount shall first be calculated without giving effect to amounts being utilized pursuant to the Fixed Incremental Amount, but giving full pro forma effect to all applicable and related transactions (including, any incurrence and repayments of indebtedness) and all other permitted pro forma adjustments and thereafter, incurrence of the portion of such indebtedness or other applicable transaction or action to be incurred under the Fixed Incremental Amount shall be calculated. Additionally, any Fixed Incremental Amount previously incurred shall be reclassified as having been incurred under the Ratio Incremental Amount if such Ratio Incremental Amount would be satisfied in any subsequent fiscal quarter and such reclassification shall be deemed to have automatically occurred whether or not elected by the Company, (ii) no Lender will be required to ~~provide~~ participate in any such Incremental ~~Commitment unless it so agrees;~~ Facility, (iii) the Incremental Facilities will rank pari passu in right of payment and security with the other Senior Facilities, (iv) the Incremental Term Facilities will have a final maturity ~~date and~~ no earlier than the final maturity of the Term Loans; provided that any Incremental Revolving Facility will have a final maturity no earlier than the final maturity of the Revolving Facility, (v) the weighted average life to maturity of ~~such~~ any Incremental ~~Commitments~~ Term Facility shall be no ~~earlier~~ shorter than ~~or shorter than, as the case may be, the Maturity Date or the weighted average life to maturity~~ that of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Commitment Letter (Hilton Grand Vacations Inc.)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~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 new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ Existing Term Tranche ~~of Loans~~ (the “Supplemental Term Loan Commitments”), (iii) to increase any existing Incremental Revolving Commitments by requesting new Incremental Revolving Commitments be added to an existing tranche of Incremental 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), ; provided that~~, after the FourthSixth Amendment Effective Date~~, (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 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 ~~subsection 7.1(b)(xiv)(i)~~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)~~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 and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~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 2.5~~ 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of any swingline lender or letter of credit issuing lender that would have credit exposure to such Additional Incremental Lender (in each case, such consent not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: First Lien Credit Agreement (Atkore International Group Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right,~~ The Company may at any time and from time to ~~time after~~ time, by delivery to the ~~Closing Date~~Administrative Agent of a written notice signed by a Responsible Officer of the Company, request the addition of a new tranche of term loans (~~i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the~~ an “Incremental Term ~~Loan Commitments~~Facility”), a new tranche of revolving loans (~~ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to~~ an ~~existing Tranche of 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”)~~Tranche Facility” and, ~~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 (~~together with the Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments~~Facility, the “Incremental ~~Commitments~~Facilities”), ~~provided that~~an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Increase”), an increase in the Aggregate Revolving Euro Tranche Commitments (an “Incremental Euro Tranche Increase”), an increase in the Aggregate Revolving Yen Tranche Commitments (an “Incremental Yen Tranche Increase” and, together with the Incremental Revolving Increases and the Incremental Euro Tranche Increases, the “Incremental Increases”) or a combination thereof in an aggregate principal amount for all such Incremental Facilities and Incremental Increases incurred after the ~~FourthSixth Amendment~~ Effective ~~Date~~Date not exceeding, at any time of determination, the sum of (i) an amount equal to the greater of (A) $1,750,000,000 and (B) 100% of EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b) (the “Incremental Fixed Amount Basket”) minus the aggregate principal amount of ~~Incremental Commitments permitted~~ all additional Indebtedness issued or incurred pursuant to ~~this~~ subsection ~~2.5 is limited~~8.2(e)(i) or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such additional Indebtedness was issued or incurred in reliance on the Incremental Equivalent Fixed Amount Basket, or any refinancing or replacement of any such Indebtedness in accordance with subsection 8.2(e)(ii)) and (ii) the maximum amount which may be incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence and all other transactions to be consummated in connection therewith (including the incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.50 to 1.00; provided that, subject to the provisions in subsection 2.6(e) below, at the time of any such request and upon the ~~respective~~ effectiveness of the Incremental ~~Commitment becomes effective~~Facility Amendment referred to below, to (A) no Default or Event of Default shall exist, and (B) the Company shall be in Pro Forma Compliance; provided, further, that for purposes of clause (ii) of this sentence and clause (B) in the proviso immediately above, in the case of an Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Increases were fully drawn but using only the actual Total Revolving Credit Outstandings (and not the amount of the Revolving Credit Commitments) under the Revolving Credit Facility, the actual Total Revolving Euro Tranche Outstandings (and not the amount of the Revolving Euro Tranche Commitments) under the Revolving Euro Tranche Facility or the Outstanding Amount of all Revolving Yen Tranche Loans (and not the amount of the Revolving Yen Tranche Commitments) under the Revolving Yen Tranche Facility, as the case may be, in effect immediately prior to the closing of such Incremental Revolving Tranche Facility or Incremental Increase and for the purpose of computing the usage of the basket in clause (i) of this sentence, the aggregate ~~principal~~ amount of outstanding Incremental Facilities incurred solely in reliance on clause (~~not less than zero~~ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness ~~that is~~ permitted to be ~~Incurred under subsection 7.1(b)(xiv)(i~~incurred pursuant to clause (i) ~~by the Borrower~~ or ~~its Restricted Subsidiaries at such time plus (B) $250 million and~~ clause (ii) ~~if any portion~~ of ~~an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i)~~the immediately preceding sentence, the ~~Borrower shall~~ Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i).If both amounts are available and the Company does not make an election, the Company will be deemed to have ~~delivered a certificate~~ incurred such Indebtedness pursuant to ~~the Administrative Agent, certifying compliance with the financial test set forth in~~ clause (ii).The Company may not reclassify any Indebtedness incurred pursuant to such clause (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any such Incremental Commitment~~ i) or clause (~~other than Supplemental Term Loan Commitments~~ii) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess after the incurrence thereof. (b) Each ~~request~~ Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not less than $25,000,000 (or, in the case of any Incremental Revolving Tranche Facility denominated in an Alternative Currency, the Alternative Currency Equivalent in such Alternative Currency of $25,000,000), each Incremental Euro Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Euro of $25,000,000 and each Incremental Yen Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Yen of $10,000,000. (c) Each Incremental Facility (i) shall rank pari passu or junior (except in the case of any obligation thereunder of a Designated Borrower that is a Foreign Subsidiary, which would be senior as a result of such Designated Borrower not guaranteeing or providing collateral security for the Obligations of the Domestic Loan Parties) in right of payment and of security with the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Term A-3 Loans, the Term A-5 Loans, the Term A-6 Loans, the Euro Term Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the requirement that any Lien thereunder on any property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral/Covenant Release Date as provided herein, (ii) in the case of an Incremental Revolving Tranche Facility, shall not mature earlier than (and shall not have scheduled commitment reductions occurring before) the Termination Date with respect to the Revolving Credit Facility, the Revolving Euro Tranche Facility or the Revolving Yen Tranche Facility, (iii) in the case of an Incremental Term Facility, shall not mature earlier than the Termination Date with respect to the Term A-1 Facility or, if later, the latest Termination Date with respect to the other Term Facilities or any Incremental Term Facility outstanding at such time nor have a Weighted Average Life that is shorter than the Weighted Average Life of the Term A-1 Loans (or, if later and/or longer, the other Term Loans and any Incremental Term Facility) (provided that, with respect to this clause (iii), (A) at the option of the Company, this clause (iii) shall not apply to any Permitted Bridge Indebtedness, (B) so long as such Incremental Term Facility is not incurred under the Incremental Fixed Amount Basket, the Company may incur Incremental Term Facilities as Inside Maturity Indebtedness, and (C) in determining the latest Termination Date in respect of any Term Facility for purposes of this clause (iii), any Term Facility outstanding with a stated maturity date later than the five year anniversary of the incurrence of such Term Facility shall be disregarded), (iv) in the case of an Incremental Term Facility, for purposes of rights to payment, prepayments and voting, shall be treated no more favorably than the existing Term A-1 Loans, and (v) shall not contain additional or different covenants or financial covenants which are materially more restrictive than the covenants herein on the Effective Date or the Financial Covenants unless (x) the Lenders under the existing Loans also receive the benefit of such more restrictive terms (it being understood to the extent that any covenant is added for the benefit of any such Indebtedness, no consent shall be required from the ~~Borrower pursuant~~ Administrative Agent or any Lender to ~~this subsection 2.5~~ the extent that such covenant is also added for the benefit of any corresponding existing Loans), (y) any such provisions apply after the latest Termination Date applicable to outstanding Loans at such time, or (z) such terms shall be reasonably satisfactory to the Administrative Agent and the Company (provided that a certificate of a Responsible Officer delivered to the Administrative Agent in connection therewith, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or copies of the principal documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within fifteen (15) Business Days that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Any such notice shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental ~~Commitments. The~~ Facility or Incremental ~~Commitments~~ Increases requested by the Company and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Facility or providing any portion ~~thereof~~of such Incremental Increase. (d) The Company may arrange for one or more banks or other financial institutions, each of which shall be ~~made by any existing~~ reasonably satisfactory to the Administrative Agent and the Company and, with respect only to Incremental Revolving Increases, the Swing Line Lender, the L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Euro Tranche Increases, the Swing Line Euro Tranche Lender ~~or by any other bank or financial institution~~ (~~any such existing Lender and~~ any such bank or other financial ~~institution,~~ institution being called an “Additional Lender”), ~~provided, if such Additional Lender is not already~~ to extend commitments under the Incremental Facility or provide a ~~Lender hereunder or an Affiliate of a Lender hereunder, to the consent~~ portion of the ~~Administrative Agent (such consent not to be unreasonably withheld or delayed)~~ Incremental Increase, and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated no Lender shall be ~~subject~~ required to ~~the provisions~~ provide a portion of ~~subsection 10.6(h), mutatis mutandis, to the same extent as if~~ any such Incremental Facility or provide a portion of any such Incremental Increase. Commitments ~~and related Obligations had been obtained by such Lender by way~~ in respect of ~~assignment). (c) Supplemental Term Loan Commitments~~ Incremental Facilities or any Incremental Increases shall become ~~commitments~~ Commitments under this ~~Agreement pursuant to a supplement specifying the Tranche to be increased~~Agreement, ~~executed by the Borrower~~ and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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 become a ~~Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan~~ Lender under ~~the applicable Tranche, for all intents and purposes of~~ this Agreement~~. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement~~ , pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and~~ Company, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents ~~as may be~~ to the extent (but only to the extent) necessary ~~or appropriate, in the opinion of the Borrower and the Administrative Agent,~~ to effect the provisions of this Section. Subject to subsection ~~2.5~~2.6(e) below, ~~provided, however,~~ effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in subsection 6.2 (it being understood that (iall 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 Amendment) ~~(A)~~ and the delivery of customary legal opinions. The proceeds of the Incremental Facilities or the Incremental Commitments will ~~not~~ be ~~guaranteed by~~ used for working capital and other general corporate purposes. Notwithstanding any provision to the contrary contained herein, if a Subsidiary ~~of the Borrower~~ (other than the ~~Subsidiary Guarantors~~Borrower) shall, at the time of any proposed Incremental Term Facility to be provided by Farm Credit Lenders, own assets consistent with those set forth in Section 5.17(c) and (d), and ~~will be secured on a pari passu or (~~which the CoBank TL Lead Arranger deems eligible assets for purposes of this Agreement and the proposed Incremental Term Facility then, at the Borrower’s ~~option) junior basis~~ sole election, such Subsidiary may be joined as an additional borrower under this Agreement subject to the conditions of subsection 2.8 and such other joinder documentation and related terms and conditions to be agreed upon by the ~~same Collateral securing~~ Administrative Agent, the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date CoBank TL Lead Arranger and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the applicable Additional LendersCredit Parties; provided that, in it is understood and agreed that satisfaction of such conditions and such joinder may be a condition precedent to the ~~event that~~ closing and funding of the ~~applicable interest rate margins for any term loans Incurred~~ proposed Incremental Term Facility if so requested by the ~~Borrower under~~ financial institutions providing the proposed Incremental Term Facility. (e) In the case of any Incremental Term ~~Loan Commitment~~ Facility the proceeds of which are ~~higher than the applicable interest rate margin for any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall~~ to be ~~increased~~ used to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be requiredfinance a substantially concurrent Limited Condition Transaction, to the extent the Company has made an ~~increase~~ LCT Election, notwithstanding anything in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote this subsection 2.6 or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans 6.2 to the ~~extended maturity date~~ contrary, the provisions set forth in subsection 1.8 shall apply; provided that no Specified Default shall exist and be continuing immediately before and after the ~~weighted average life to maturity~~ incurrence of any such Incremental Term Loans, as applicable, and (4) in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerFacility.

Appears in 1 contract

Samples: Credit Agreement (Graphic Packaging Holding Co)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~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~~ Restatement 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”), (ii) to increase the ~~loans in any Tranche~~ 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.6 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness ~~that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ in connection therewith), the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ Maximum Incremental Facilities Amount, (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.6 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 ~~existing Lender and 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, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may ~~then~~ be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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)Subsection 11.6. (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 O I-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P I-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to Subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a ~~Lender,~~ Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a ~~Loan under the applicable Tranche, for all intents and purposes of this Agreement~~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 ~~subsection 2.5~~Subsection 2.6, provided, however, that (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 Initial Term ~~Loans~~Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement or will be unsecured), (B) the Incremental Commitments and 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 (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 are outstanding, other than in the case of an Incremental Revolving Commitment, any mandatory prepayment provisions that do not also apply to the ~~applicable~~ Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment~~, which shall be subject to junior prepayment provisions~~) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for ~~such~~ the Initial Term Loans than such Incremental ~~Loans~~Term Loans as contemplated by the proviso appearing in Subsection 4.4(c)), provided that any Incremental Term Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the ~~applicable~~ Initial Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of any such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the remaining weighted average life to maturity of the Initial Term ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, ~~that~~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 Maturity Date of the Initial Term ~~B-45~~ Loans or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ 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 ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ 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 ~~any~~ the Initial Term Loans by more than 50 basis points, then the Applicable Margin for ~~such~~ the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ 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~~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 Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under ~~such~~ the Initial 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); , (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 Lenders providing such Incremental Term Loans shall be excluded; , (C) any amendments to the Applicable Margin on ~~any~~ Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment~~ Restatement Effective Date but prior to the time of such Incremental Term Loans shall also be included in such ~~calculations and~~ calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ 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 ~~such~~ the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ 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 ~~such~~ the Initial 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 Initial Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Initial 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 Initial 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 Initial 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 Initial Term Loans shall be required, and (F) if the applicable Initial 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 ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ 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 ~~Permitted~~ Obligations” and “Refinancing Indebtedness” and ~~subsection 7.8(b~~Subsection 8.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of ~~such~~ the Initial Term Loans and remaining weighted average life to maturity of ~~such~~ the Initial 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, ~~add, or~~ provide for adjustments ~~to,~~ to the definition of “Agent Default,” ”, “Defaulting Lender” protections and appropriate modifications to ~~subsection 2.7~~ Subsection 2.8 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms substantially similar to the equivalent provisions in the Senior ABL Facility Agreement (as in effect on the Restatement Effective Date), or as otherwise 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 (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Envision Healthcare Corp)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a~~The Company or any Borrower and any one or more Lenders (including New Lenders) ~~or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and~~ may from time to time ~~after~~ agree that such Lenders shall (i) make, obtain or increase the amount of their Term Loans or (ii) during the Revolving Availability Period, make, obtain or increase the amount of their 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 Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the case of Incremental Term Loans, (x) the applicable Incremental Term Maturity Date, which shall not be prior to the Initial Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.03, and (z) the Applicable Rate for such Incremental Term Loans; provided, that, prior to the twelve month anniversary of the Closing Date, if the all-in yield in respect of any Incremental Term Loans exceeds the all-in yield for the Initial Term Loans immediately prior to the effectiveness of such Incremental Term Loans by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors), then the Applicable Rate relating to the Initial Term Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all- in yield relating to the Initial Term Loans by more than 0.50%. Notwithstanding the foregoing, (i) ~~to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (~~without the ~~“Incremental Term Loan Commitments”), (ii) to increase~~ consent of the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving CommitmentsRequired Lenders, the ~~“Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date,~~ sum of (ix) the aggregate principal amount of the Incremental ~~Commitments permitted~~ Facilities incurred pursuant to this ~~subsection 2.5 is limited~~Section 2.24, ~~at the time the respective Incremental Commitment becomes effective, to~~ and (Ay) the aggregate outstanding principal amount ~~(not less than zero)~~ of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an~~ Incremental ~~Commitment is to be~~ Equivalent Debt incurred in reliance on ~~subsection 7.1(b)(xiv)(i),~~ Section 7.03(s) shall not at 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). Any loans made in respect time of incurrence of any such Incremental ~~Commitment~~ Facilities or Incremental Equivalent Debt (~~other than Supplemental Term Loan Commitments~~and after giving effect to such incurrence) ~~shall be made by creating a new Tranche. Each~~ exceed the Available Incremental ~~Commitment under anythe Term Loan Facility made available~~ Amount at such time, (ii) each increase effected pursuant to this ~~subsection 2.5~~ paragraph shall be in a minimum ~~aggregate~~ amount of at least $~~15,000,000~~ 20,000,000 (or the Dollar Equivalent thereof) and (iii) no more than three Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in ~~integral multiples of $1,000,000~~ any increase described in ~~excess thereof~~this paragraph unless it agrees to do so in its sole discretion. (b) Each request from the Borrower pursuant to this subsection 2.5 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 Any additional bank, financial institution ~~(any such existing Lender and any such bank~~ or other ~~financial institution~~entity which, ~~an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to~~ with the consent of the applicable Borrower and the Administrative Agent (~~such~~ which consent shall not to be unreasonably ~~withheld or delayed) and the consent of any swingline lender or issuing lender~~withheld), ~~as the case may be, that may then be required~~ elects to become a “Lender” under this Agreement in connection with an Incremental Facility pursuant to ~~subsection 10.6~~ the transactions described in Section 2.24(a) shall execute a New Lender Supplement (~~such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional~~ each, a “New Lender ~~that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h~~Supplement”), ~~mutatis mutandis~~substantially in the form of Exhibit F-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 ~~such Incremental Commitments~~ originally a party hereto 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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ bound by and entitled to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes benefits of this Agreement. (dc) 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 Unless otherwise agreed 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, on each Increased Facility Closing Date with respect to ~~effect~~ the ~~provisions~~ Revolving Facility, the Borrowers shall borrow Revolving Loans under the relevant Revolving Commitments from each Lender participating in the relevant Incremental Revolving Commitment in an amount determined by reference to the amount of ~~this subsection 2.5~~each Type of Loan (and, ~~provided~~in the case of Eurocurrency Rate Loans, ~~however, that~~ 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 on such Increased Facility Closing Date and (Aii) the ~~Incremental Commitments will not be guaranteed by any Subsidiary~~ aggregate amount of each such Type or (d) Notwithstanding anything to the contrary in this Agreement, each of the ~~Borrower~~ 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 evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the other ~~than the Subsidiary Guarantors,~~ parties hereto. Each Incremental Facility and ~~will~~ all extensions of credit thereunder shall be secured by the Collateral on a pari passu ~~or (at~~ basis with the ~~Borrower’s option) junior basis by~~ Liens on the ~~same~~ Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (Columbus McKinnon Corp)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(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,~~ RestatementThird Amendment Effective Date to (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”), ) and/or (ii) to increase the ~~loans in any Tranche by requesting new term loan commitments to be added to~~ Total Revolving Credit Commitment (theeach, an ~~existing Tranche of Loans (the~~ “~~Supplemental Term Loan Commitments”)~~Incremental Revolving Facility” and, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (~~such commitments, the “Incremental Revolving Commitments”)” and, ~~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 (~~together with the Incremental Term Loan Commitments, ~~Supplemental Term Loan Commitments and the Incremental Revolving Commitments,~~ the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”)) so long as the aggregate then outstanding principal amount of the sum of all unutilized Incremental Commitments and Incremental Loans together with any amounts Incurred under Section 8.2(v) that were Incurred in reliance on the Fixed Incremental Amount does not exceed the Fixed Incremental Amount, plus if the Consolidated Senior Secured Leverage Ratio after giving effect to the Incurrence of Incremental Loans thereof (subject to Section 1.3) is less than or equal to 3.50 to 1.00 (assuming for purposes of such calculation that the Incremental Revolving Commitments being incurred at the time of such calculation are fully drawn and assuming that any unsecured notes are deemed to be secured ratably with the Facilities for purposes of calculating the Consolidated Senior Secured Leverage Ratio), an unlimited amount; provided that, after giving pro forma effect to any Incurrence or discharge of Indebtedness on the ~~FourthSixth Amendment Effective Date, (i)~~ date the ~~aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective~~ applicable Incremental Commitment Agreement (as defined below) becomes ~~effective,~~ effective (subject to (ASection 1.3) and all related transactions as if completed on the ~~aggregate principal amount (not less than zero)~~ first day of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance~~ twelve12-month period ending on ~~subsection 7.1(b)(xiv)(i)~~the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the terms hereof, was required on the Test Date) (and the Borrower shall ~~have delivered~~ deliver a ~~certificate~~ certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative ~~Agent,~~ Agent certifying that the Borrower is in compliance with ~~the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~this Section 4.17). Any loans made in respect of any such Incremental ~~Commitment (other than Supplemental~~ Term Loan ~~Commitments)~~ Commitment shall be made by creating a new ~~Tranche. Each Incremental Commitment under anythe~~ TrancheIncurred in the form of increases to any Class of existing Term ~~Loan Facility made available pursuant to this subsection 2.5~~ Loans shall be identical to and form part of such Term Loans. Any Incremental Revolving Facility Commitments shall be Incurred in ~~a minimum aggregate amount~~ the form of ~~at least $15,000,000~~ increases to the Revolving Credit Commitments and ~~in integral multiples~~ such Incremental Revolving Facility Commitment shall be identical to and form part of ~~$1,000,000 in excess thereof~~such Revolving Facility. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 4.17 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”)) subject, ~~provided~~(i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or ~~an Affiliate~~ any affiliate of a Lender hereunder, ) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed~~) and the consent~~ ). Any allocation of any ~~swingline lender or issuing lender, as the case may be, that may then be required pursuant~~ Incremental Commitments to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that~~ any ~~such Additional Lender that is an~~ Affiliated Lender shall be subject to the ~~provisions~~ terms of ~~subsection 10.6(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~~Section 11.6(g). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Third Amendment Agreement (KAR Auction Services, Inc.)

Incremental Facilities. (a) So long as no Event of Default under subsection ~~8(a~~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 ~~Closing~~ 2021 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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~~ and/or (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this subsection ~~2.5 is limited~~2.9 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under this Agreement in compliance with subsection ~~7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be ~~incurred~~ Incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~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 ~~ratio)~~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~~ Loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this subsection ~~2.5~~ 2.9 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~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 ~~2.5~~ 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 any existing Lender or by any other bank or financial institution (any such ~~existing Lender and any such~~ other bank or ~~other~~ financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to 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~~ withheld, delayed or ~~delayed~~conditioned) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be ~~subject to the provisions of subsection 10.6(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).~~required. [[5629054]] (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 O O‑1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P O‑2 (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 Incremental Lender shall be a ~~Lender,~~ 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~~or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~for all intents and purposes of this Agreement~~as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ applicable Incremental Lender. An Notwithstanding anything to the contrary herein or in any other Loan Document, 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, (x) to ~~effect~~ effectuate the provisions of this subsection ~~2.5~~2.9 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any Tranche of then outstanding Term Loans; provided, however, that (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 (~~be, at the Borrower’s option) , secured on an equal and ratable basis or a junior basis by the same Collateral securing the ~~Term Loans~~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 ~~pari passu~~ on an equal and ratable basis in right of payment with or (at the Borrower’s option) junior in right of payment to the ~~Term Loans~~ 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 ~~Term Loans~~ Senior Credit Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 acquisition) or Recovery Events or from Excess Cash Flow, to the ~~applicable~~ extent the Net Available Cash 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 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with subsection 10.1(d)(v)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (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 Initial Revolving Maturity Date; (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 B Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term ~~B-45 Loans~~ B Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for (x) customary bridge financings, ~~that~~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 B Loan Maturity Date ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ B Loans, as ~~applicable~~applicable and (y) Customary Term A Loans); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the [[5629054]] applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any term loans (other than Customary Term A Loans) made prior to the date that is 12 months after the 2021 Amendment 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 ~~are~~ or under subsection 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 ~~any~~ the Initial Term B Loans by more than 50 basis points, then the Applicable Margin for ~~such~~ the Initial Term B Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term B Loans is equal to the applicable interest rate margins for such Incremental Term ~~Loan Commitment~~ Loans or such other term loans, as applicable, minus 50 basis points; ~~provided~~ provided, further that, in determining the applicable interest rate margins for the Initial Term B Loans and the Incremental Term ~~Loans~~Loans or such other term loans, as applicable, (A) original issue discount (“OID”) or upfront fees payable generally to all participating ~~Additional~~ Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under ~~such~~ the Initial Term B Loans or any Incremental Term Loan or other term loan, as applicable, 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 B Loans are issued in a manner such that all Initial Term B Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term B Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term B Loans shall be determined on a weighted average basis); (B) any arrangement, ~~structuring~~ 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 ~~Additional~~ 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 ~~any~~ the Initial Term B Loans that became effective subsequent to the ~~FifthSixth~~ 2021 Amendment Effective Date but prior to the time of such Incremental Term B 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 ~~such~~ the Initial Term B 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 ~~such~~ the Initial Term B Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ the Initial Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to ~~such~~ the Initial Term B Loans shall be increased by such amount; (vvi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Incremental Lenders in any required vote or action of the Required Lenders, ~~Supermajority~~ Required Revolving Lenders, Required Term A Lenders, Required Term A/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 ~~Permitted~~ Obligations,” “Disqualified Stock,” and “Refinancing Indebtedness~~” and subsection 7.8(b)~~”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term A Loan Maturity Date ~~of such~~ or the Initial Term ~~Loans~~ B Loan Maturity Date, as applicable, and remaining weighted average life to maturity of ~~such~~ the Initial Term A Loans or Initial Term B Loans, as applicable, to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as ~~applicable,~~ applicable and (4) in for the ~~case~~ amendment of ~~an Incremental Revolving Commitment, add, or provide for adjustments to,~~ clause (iii) of the definition of “~~Agent Default,~~Additional Obligations” ~~“Defaulting Lender” protections and appropriate modifications to subsection 2.7~~ to provide for ~~“amend and extend” mechanics for~~ the applicable mandatory prepayment protections to apply to such Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender)Term Loans; and (vivii) 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, (x) in the case of “term A” Incremental Term Loans, the terms and documentation governing the Initial Term A Loans, (y) in the case of “term B” Incremental Term Loans, the terms and documentation governing the Initial Term B Loans or (z) in the case of Incremental Revolving Commitments, the terms and documentation governing the Initial Revolving Commitments (except to the extent permitted by clause (iii), (iv), (v) or (vi) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. The Administrative Agent shall promptly notify each [[5629054]] Lender as to the effectiveness of each Incremental Commitment Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Commitment Amendment, this Agreement and any other Loan Document shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby.

Appears in 1 contract

Samples: Credit Agreement (Frontdoor, Inc.)

Incremental Facilities. (a) So long as no Event of Default under subsection 8(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 The Borrowers may on one or more ~~new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”)~~occasions, ~~(ii) to increase the loans in any Tranche~~ by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate written notice to the Administrative Agent, ~~certifying compliance with~~ request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) the establishment of Incremental Term Commitments for the U.S. Borrower; provided that the Dollar Equivalent of the aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Commitments to be established hereunder following the Amendment No. 12 Effective Date shall not exceed the greater of (A) the Incremental Base Amount as of such date and (B) assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments, and all previously established Incremental Revolving Commitment Increases and Incremental Term Commitments then in effect, shall have been funded as Loans on such date, an additional aggregate amount, such that, after giving Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Commitments and the use of proceeds thereof, the Borrowers shall be in Pro Forma Compliance, recomputed as of the last day of the most recently ended Test Period for which financial ~~test set forth in such clause~~ statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements), with a Senior Secured Leverage Ratio that is no greater than 2.50:1.00. Each such notice shall specify (A) the date on which the applicable Borrower proposes that the Incremental Revolving Commitment ~~(other than Supplemental~~ Increases or the Incremental Term ~~Loan~~ Commitments) , as applicable, shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5~~ effective, which shall be in a ~~minimum aggregate~~ 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 ~~at least $15,000,000~~ 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 Borrowers 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 right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the applicable 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 and, in ~~integral multiples~~ the case of ~~$1,000,000 in excess thereof~~any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank and the Swingline Lender would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank and the Swingline Lender). (b) ~~Each request from the Borrower~~ 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 Revolving Loans and/or Revolving Commitments pursuant to the terms of this ~~subsection 2.5~~ Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, 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 ~~requested amount~~ applicable Incremental Facility Agreement and ~~proposed terms~~ shall be identical to those of the ~~relevant~~ Term Commitments and the Term Loans (other than with respect to maturity, amortization, prepayment, fees and pricing, which shall be, subject to the following proviso, determined by the applicable Borrowers and the Lenders thereunder as set forth in documentation to be determined by the Borrowers and reasonably satisfactory to the Administrative Agent); provided that (A) the Weighted Average Life to Maturity of any Incremental ~~Commitments. The~~ Term Loans shall be no shorter than the longest remaining Weighted Average Life to Maturity of any Class of Term Loans then outstanding, (B) no Incremental ~~Commitments~~ Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (C) any Incremental Term Loans may participate in any mandatory prepayment under Sections 2.11(c) and (e) on a pro rata basis (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”on less than pro rata basis), ~~provided~~but not on a greater than pro rata basis with the other Term Loans, ~~if such Additional Lender is not already a Lender hereunder or an Affiliate~~ (D) any Incremental Term Loan shall rank pari passu in right of ~~a Lender hereunder~~payment and of security with the Initial Term Loans and shall be secured only by the Collateral securing the Obligations, ~~to the consent of~~ (E) any Incremental Term Loan shall be denominated in Dollars and (F) any Previously Absent Financial Maintenance Covenant shall be permitted so long as the Administrative Agent shall be given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, may be (x) designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement or (y) effected as an increase to an existing Class of Term Loans. (c) 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 applicable Borrower, each Incremental Lender providing such ~~consent not to be unreasonably withheld~~ Incremental Term Commitments or ~~delayed) and the consent of any swingline lender or issuing lender~~Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent; provided that ~~may then~~ no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless: (i) no Default or Event of Default shall have occurred and be ~~required pursuant~~ continuing on the date of effectiveness thereof, both immediately prior to ~~subsection 10.6 (~~and immediately after giving effect to such ~~consent not~~ Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be ~~unreasonably withheld~~ made on such date; (ii) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or ~~delayed~~Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (~~it being understood that~~ B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such ~~Additional Lender~~ representation and warranty that ~~is an Affiliated Lender~~ expressly relates to a prior date, in which case such representation and warranty shall be ~~subject~~ so true and correct on and as of such prior date; provided that in the case of any Incremental Term Loans or Incremental Revolving Commitment Increase used to finance an acquisition permitted hereunder and whose consummation is not conditioned upon the ~~provisions of subsection 10.6(h)~~availability of, ~~mutatis mutandis~~or on obtaining, third party financing, to the ~~same~~ extent ~~as if~~ the Lenders participating in such Incremental ~~Commitments~~ Term Loans or Incremental Revolving Commitment Increase agree, this clause (ii) shall require only customary “specified representations” and ~~related Obligations had been obtained~~ “acquisition agreement representations” requested by ~~such Lender by way of assignment).~~the applicable Incremental Lenders; (ciii) ~~Supplemental~~ after giving Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term ~~Loan~~ Commitment, the incurrence of any Loans thereunder and the use of the proceeds thereof, and assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments shall ~~become commitments under this Agreement~~ have been funded as Loans on such date, the Borrowers shall be in Pro Forma Compliance with each Financial Maintenance Covenant, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to ~~a supplement specifying~~ Section 5.01(a) or 5.01(b) (or, prior to the ~~Tranche~~ delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements); (iv) the applicable Borrower shall make any payments required to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to Section 2.16 in connection with such ~~Supplemental~~ Incremental Term ~~Loan~~ Commitments or Incremental Revolving Commitment ~~shall be a Loan under~~ Increase and the ~~applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments~~ related transactions under this Section. Each Incremental Facility 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~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to give effect to the provisions of this ~~subsection 2.5~~Section. (d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental ~~Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no~~ Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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~~ be a “Lender” (and a Lender in respect of ~~OID~~Commitments and Loans of the applicable Class) ~~payable by the Borrower to the Lenders under such Term Loans or any Incremental Term Loan in the initial primary syndication thereof~~ hereunder, and henceforth shall be ~~included~~ entitled to all the rights of, and benefits accruing to, Lenders (~~with OID being equated to interest based on an assumed four-year life to maturity); (B~~or Lenders in respect of Commitments and Loans of the applicable Class) ~~any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans~~ hereunder and shall be ~~excluded;~~ bound by all agreements, acknowledgements and other obligations of Lenders (~~C) any amendments to the Applicable Margin on any Term~~ or Lenders in respect of Commitments and Loans ~~that became effective subsequent to the FifthSixth 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 such Term Loans, such increased amount shall be equated to the applicable ~~interest rate margin for purposes of determining whether an increase to~~ Class) hereunder and under the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicableLoan Documents, and (4ii) in the case of an any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, ~~add~~such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or ~~provide for adjustments to,~~ reduction from time to time as set forth in the definition of the term “~~Agent Default,~~Revolving Commitment.” ~~“Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for~~ For the avoidance of doubt, upon the effectiveness of any Incremental Revolving ~~Commitments~~ Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and ~~related Obligations~~each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit 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 Increase. (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 applicable Borrower 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 applicable Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Term Commitments, in each case ~~on terms agreed by the Borrower, the Administrative Agent and~~ advising the Lenders ~~providing such Commitments (including~~ of the details thereof and, in the case of effectiveness of any ~~swingline lender or issuing lender); and (vi)~~ Incremental Revolving Commitment Increase, of the ~~other terms and documentation in respect thereof, to~~ Applicable Percentages of the ~~extent not consistent with this Agreement as in effect prior to~~ Revolving Lenders after giving effect thereto and of the assignments required to ~~the Incremental Commitment Amendment, shall otherwise~~ be ~~reasonably satisfactory~~ made pursuant to ~~the Borrower~~Section 2.21(e).

Appears in 1 contract

Samples: Incremental Facility Agreement (Ingevity Corp)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom~~Subject to the terms and conditions set forth herein, the Borrower shall have the right, ~~at any time and~~ from time to time ~~after~~ and upon at least ten Business Days’ prior written notice to the ~~Closing Date~~Administrative Agent (an “Incremental Request”), ~~(i)~~ to request ~~new~~ to incur additional term ~~loan commitments~~ loans under a then existing tranche and/or add one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (such additional term loans together with any loans under any such additional tranche, collectively, the “Incremental Term ~~Loan Commitments~~Loans”~~), (ii~~; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) to and/or increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement Revolving Commitments (the “Incremental Revolving ~~Commitments~~Facility”); and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Term Facilities and Incremental Revolving Facilities are referred to herein as “Incremental Facilities”; the Incremental Revolving Loans, ~~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 (~~together with the Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments,~~ Loans are referred to herein as the “Incremental ~~Commitments~~Facility Loans”)) subject, ~~provided that~~however, ~~after~~ in any such case, to satisfaction of the ~~FourthSixth Amendment Effective Date,~~ following conditions precedent: (a) the aggregate amount of all Incremental Revolving Facilities and Incremental Term Loans effected pursuant to this Section 2.16 shall not exceed the sum of (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time $100,000,000 plus ~~(B) $250 million and~~ (ii) if an unlimited additional amount so long as (in the case of this clause (ii)) the Consolidated Leverage Ratio, determined on a pro forma basis after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded on such date and without giving effect to such Incremental Facility Loans when calculating the cash netting under the Consolidated Leverage Ratio) and the use of the proceeds thereof, does not exceed 2.00 to 1.00 recomputed as of the end of the most recently computed Measurement Period as though such Incremental Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period; provided that the aggregate amount of all Incremental Revolving Facilities effected pursuant to Section 2.16(a)(i) shall not exceed $50,000,000; (b) on the date on which any ~~portion of an~~ Incremental ~~Commitment~~ Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans, no Default shall have occurred and be ~~incurred in reliance~~ continuing; (c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and the use of the proceeds thereof, on ~~subsection 7.1(b)(xiv)(i)~~a pro forma basis, the ~~Borrower~~ Loan Parties shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in compliance with the financial ~~test~~ covenants set forth in ~~such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ Section 7.11 recomputed as of ~~any~~ the end of the most recently computed Measurement Period as though such Incremental ~~Commitment~~ Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period (~~other than Supplemental Term Loan Commitments~~d) the representations and warranties set forth in Article V shall be ~~made~~ true and correct in all material respects (or if such representation and warranty is qualified by ~~creating a new Tranche. Each~~ materiality or Material Adverse Effect, it shall be true and correct) on and as of the date on which such Incremental ~~Commitment under anythe Term Loan~~ Facility ~~made available pursuant~~ Amendment is to ~~this subsection 2.5~~ become effective, 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 (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date; (e) such Incremental Facility Loans shall be in a minimum ~~aggregate~~ amount of ~~at least~~ $~~15,000,000~~ 5,000,000 and in integral multiples of $1,000,000 in excess ~~thereof.~~thereof (or such lesser amounts as agreed by the Administrative Agent); (bf) ~~Each request~~ in the case of an Incremental Revolving Facility: (i) such Incremental Revolving Facility shall be made on the same terms and provisions (other than arrangement fees and upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the ~~Borrower pursuant to this subsection 2.5~~ Revolving Facility; (ii) if any Revolving Loans are outstanding on the effective date of such Incremental Revolving Facility, (A) each Lender providing such Incremental Revolving Facility shall ~~set forth~~ make Revolving Loans on the ~~requested amount and proposed terms~~ effective date of such Incremental Revolving Facility, the ~~relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may~~ proceeds of which shall be ~~made~~ applied by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent to prepay the outstanding Revolving Loans, in an amount necessary such that immediately after giving effect thereto each Lender holds its Applicable Percentage (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject with respect to the ~~provisions of subsection 10.6(h), mutatis mutandis,~~ Revolving Facility after giving effect to ~~the same extent as if~~ such Incremental ~~Commitments and related Obligations had been obtained by such Lender by way of assignment). (c~~Revolving Facility) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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,~~ outstanding Revolving Loans and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans; and (iii) if any Letters of Credit or Swingline Loans are outstanding on the effective date of such Incremental ~~Commitments~~ Revolving Facility, then on the effective date of such Incremental Revolving Facility the risk participations of the Lenders hereunder in each outstanding Letter of Credit and each outstanding Swingline Loan shall be automatically reallocated such that the risk participation of each Lender in each outstanding Letter of Credit and Swingline Loan equals such Lender’s Applicable Percentage (with respect to the Revolving Facility after giving effect to such Incremental Revolving Facility) of each such Letter of Credit and Swingline Loan; (g) any ~~incremental~~ Incremental Term Loans that constitute additional term loans ~~drawn thereunder~~ under a then existing tranche of term loans shall be made on the same terms and provisions (other than arrangement fees and 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 an Incremental ~~Loans”~~Term Loan that is a new tranche of term loans: (i) such Incremental Term Loan shall rank pari passu in right of payment priority with or the Term Loans; (at ii) such Incremental Term Loan shall share ratably in rights in the ~~Borrower’s option~~Collateral and the Guaranty and in a manner consistent with the terms of the Loan Documents; (iii) ~~junior to~~ such Incremental Term Loan shall share ratably in any mandatory prepayments of the Term Loans ~~and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans~~ pursuant 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis Section 2.05 (or otherwise provide for more favorable (from the perspective of the Borrower) prepayment treatment ~~for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments~~ than the ~~applicable~~ then outstanding Term Loans); ; (iiiv) ~~no Lender will be required~~ the final maturity date, scheduled amortization, interest rate, interest rate floor, interest rate margin, fees and original issue discount with respect to ~~provide any~~ such Incremental ~~Commitment unless it so agrees;~~ Term Loan shall be as determined by the Borrower and the Lenders providing such Incremental Term Loan, provided that: (~~iii~~A) ~~the~~ such Incremental Term Loan shall have a maturity date ~~and~~ that is not earlier than the ~~weighted average life to maturity~~ latest Maturity Date of any of the Facilities; (B) such Incremental ~~Commitments~~ Term Loan shall ~~be no earlier~~ have a Weighted Average Life to Maturity that is not shorter than ~~or shorter than, as~~ the ~~case may be, the~~ then-remaining Weighted Average Life to Maturity ~~Date or the weighted average life to maturity~~ of the Term ~~B-45~~ Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, it being understood that, subject to ~~customary conditions~~the foregoing clause (A) and this clause (B), 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to ~~any~~ such Incremental Term ~~Loans,~~ Loan shall be determined by the Borrower and the Lenders of such Incremental Term Loan); and (C) if the All-In Yield applicable ~~Additional Lenders; provided that, in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any~~ to such Incremental Term Loan ~~Commitment are higher~~ is greater than the then applicable ~~interest rate margin for~~ All-In Yield on any ~~Term Loans~~ Facility by more than ~~50 basis points~~one-half percent (0.50%) (the amount of such excess above one-half percent (0.50%) being referred to herein as the “Yield Differential”), then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (Rate with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 respect to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans Facility shall be increased by the Yield Differential applicable to such ~~amount~~Facility; and (v) such Incremental ~~Commitment Amendment may provide~~ Term Loan shall otherwise be on terms reasonably acceptable to the Administrative Agent, provided that, such terms and documentation relating to such Incremental Term Loan shall be on terms not materially more onerous, taken as a whole, to the Borrower than the Term Loan (~~1) for~~ except to the ~~inclusion~~extent permitted above with respect to the maturity date, ~~as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder, (2) class voting~~ amortization and interest rate and other ~~class protections for any additional credit facilities, (3) for~~ than terms which are applicable only after the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the then-latest Maturity Date of the existing Term Loan); (i) the Administrative Agent shall have received additional commitments in a corresponding amount of such ~~Term~~ 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); (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 Loans and ~~weighted average life to maturity of such Term Loans to~~ the ~~extended maturity date and the weighted average life to maturity~~ validity of such Incremental ~~Term~~ Facility Loans, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; and (k) the Administrative Agent shall have received such amendments to the Collateral Documents as ~~applicable~~the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the Loan Documents) after giving effect to such Incremental Facility Loans. Each Incremental Facility 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 ~~(4)~~ subject to the limitations set forth in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligationsimmediately preceding paragraph), ~~in each case on terms agreed~~ executed by the ~~Borrower~~Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Facility 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 required to be executed or approved by any Lender, other than the Lenders providing such ~~Commitments (including~~ Incremental Facility and the Administrative Agent, in order to be effective. The effectiveness of any ~~swingline lender or issuing lender); and (vi) the other terms and documentation in respect thereof,~~ Incremental Facility Amendment shall be subject to the ~~extent not consistent with this Agreement~~ satisfaction on the date thereof of each of the conditions set forth above and as ~~in effect prior to giving effect to~~ such other conditions as requested by the Lenders under the Incremental ~~Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~Facility established in connection therewith.

Appears in 1 contract

Samples: Credit Agreement (U S Physical Therapy Inc /Nv)

Incremental Facilities. 95 Syniverse Credit Agreement (a) So long as no Default or Event of Default ~~under subsection 8(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 new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the ~~loans in any Tranche~~ 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”), ; provided that in no event shall there be more than three (3) revolving facilities outstanding under this Agreement at any one time and (iv) to ~~request~~ increase the existing Revolving Credit Facility by requesting new ~~letter of~~ revolving credit ~~facility~~ commitments ~~under one or more new letter of credit facilities~~ to be ~~included in this Agreement~~ added to an existing Tranche of Revolving Credit Loans (the “Supplemental Revolving Commitments” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Section 2.14 shall not exceed, at the time the respective Incremental Commitment becomes effective, ~~to (A)~~ the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million Maximum Incremental Facilities Amount and (ii) if the financial covenant set forth in Section 7.11 would be required to be tested on the date of Incurrence of any ~~portion of an~~ Incremental Commitment ~~is to be incurred~~ (in ~~reliance~~ the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments being initially provided on ~~subsection 7.1(b)(xiv)(i)~~any date of determination, as if Incurred in full on such date) if it were the last day of a fiscal quarter, the Borrower shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in compliance with the financial ~~test~~ covenant set forth in Section 7.11 on a Pro Forma Basis after giving effect to the Incurrence of any such ~~clause~~ Incremental Commitments for the most recently ended four full fiscal quarters for which internal financial statements are available (~~together with calculations demonstrating compliance with such ratio~~or, if earlier, were required to be delivered pursuant to Section 6.02(a) or (b)). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments~~ thereof (or ~~any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any~~ such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of lesser amounts as the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case~~ may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignmentagree). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (Syniverse Holdings Inc)

Incremental Facilities. (a) So Subject to the terms and conditions set forth herein and so long as no Default or Event of Default ~~under subsection 8(a) or (f) exists or would arise therefrom~~has occurred and is continuing, the Borrower shall have the right, at any time and from time to time ~~after~~ prior to the ~~Closing~~ Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (i) ~~to request new term loan commitments under~~ one or more ~~new term loan credit facilities~~ increases to ~~be included in this Agreement~~ the Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the ~~“Incremental Term Loan~~ same Facility as the existing Revolving Commitments”), (ii) one or more increases to ~~increase~~ the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental~~ Term Loan ~~Commitments~~Committed Amount which shall constitute one and the same Facility as the existing Term Loan Commitments (each an “Increased Term Loan Commitment”), ) or (iii) ~~to request new commitments under~~ one or more ~~new revolving facilities to be included in this Agreement~~ commitments (~~the~~ each, an “Incremental ~~Revolving Commitments~~Facility Commitment”), 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 (~~together with the ~~Incremental Term Loan Commitments, Supplemental Term Loan~~ Increased Revolver Commitments and the ~~Incremental Revolving Commitments~~Increased Term Loan Commitment, the “Incremental Commitments”) for additional term loan B facilities which shall constitute a new Facility as provided in 2.22(d) below (an “Incremental Facility,” and the loans thereunder, “Incremental Loans”), ~~provided that, after the FourthSixth Amendment Effective Date, (i) the~~ up to a maximum aggregate ~~principal~~ amount of Incremental Commitments ~~permitted pursuant~~ not to ~~this subsection 2.5 is limited~~exceed $300,000,000; provided that, if the Collateral Event has occurred, the aggregate amount of all Incremental Commitments shall not exceed at the time any such Incremental Commitments are entered into the ~~respective~~ greater of (x) $300,000,000 and (y) an amount such that, on a pro forma basis as of the last day of the most recently ended fiscal quarter of the Borrower for which certifications were required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of Sections 5.1 after giving effect to such Incremental ~~Commitment becomes effective~~Commitments (and assuming such Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the ratio of Consolidated Funded Debt (other than unsecured Indebtedness) to Consolidated EBITDA does not exceed 3.00 to 1.00. (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, (ii) each Increased Revolver Commitment shall have the same terms (including interest rate and maturity date) as the existing Revolving Commitments, (iii) each Increased Revolver Commitment shall be entitled to the same voting rights as the existing Revolver 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 purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in 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 increase, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such Increased Revolver Commitment 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) ~~the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i)~~ resolutions, legal opinions and other corporate authority documents reasonably requested by the ~~Borrower or its Restricted Subsidiaries at such time plus~~ Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) ~~$250 million~~ updated financial projections and ~~(ii) if any portion of~~ an ~~Incremental Commitment is to be incurred~~ officer’s certificate, in ~~reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate~~ each case in form and substance reasonably satisfactory to the Administrative Agent, ~~certifying~~ 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 ~~test~~ covenants set forth in ~~such clause~~ Section 5.9 (~~together with calculations demonstrating compliance with such ratio~~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 ~~loans made in respect~~ 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 ~~Incremental~~ 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 Term Loan issued pursuant to an Increased Term Loan Commitment (each, an “Increased Term Loan”): (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the other ~~than Supplemental~~ Credit Party Obligations on a pari passu basis, (ii) each Increased Term Loan ~~Commitments~~shall have the same terms (including interest rate and maturity date) as the existing Term Loans, (iii) each Increased Term Loan shall be ~~made by creating~~ entitled to the same voting rights as the existing Term Loans, voting as one class, and shall be entitled to receive a ~~new Tranche. Each Incremental Commitment under anythe~~ pro rata share of proceeds of prepayments on the same basis as the existing Term Loans and shall be considered an increase to the existing Term Loans, (iv) each Increased Term Loan ~~Facility made available pursuant~~ 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 each Increased Term Loan thereunder will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in favor of any new Lender or any existing Lender requesting a Note whose Term Loan Commitment is increased, (vii) on the date of incurrence of the Increased Term Loan, the conditions to ~~this subsection 2.5~~ Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each Increased Term Loan Commitment shall be in a minimum ~~aggregate~~ amount of ~~at least~~ $~~15,000,000~~ 5,000,000 (and ~~in integral multiples of~~ $1,000,000 increments in excess thereof), (ix) proper adjustment to the remaining amortization installments pursuant to Section 2.2(b) shall be made and (x) 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 the borrowing of such Increased Term Loan 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 (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 Term Loan 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 Term Loan, the outstanding Term Loans shall be reallocated by causing such fundings and repayments (which shall not be subject to any processing and/or recordation fees) among the Term Loan Lenders (with the Borrower responsible for any costs arising under Section 2.15 resulting from such reallocation and repayments) of Term Loans as necessary such that, after giving effect to such Increased Term Loans, each Term Loan Lender will hold Term Loans based on its Term Loan Commitment Percentage (after giving effect to such Increased Term Loan Commitments). (bd) ~~Each request~~ 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 other Credit Party Obligations on a pari passu basis, (ii) each Incremental Facility shall otherwise have terms (including pricing terms) to be agreed by the Borrower and the Lenders providing the Incremental Commitments (the “Incremental Lenders”) subject to the following parameters: (A) no Incremental Facility shall mature prior to the Maturity Date applicable to the Revolving Loans or the Term Loan, (B) the Incremental Facility may not have significant amortization and shall take the form of a term loan “B” with maximum amortization of 1% of aggregate principal per annum, (C) mandatory prepayments customary for a term loan “B” (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 (D) all terms of any Incremental Facility not set forth herein, if not consistent with the existing Term Loans, shall be reasonably satisfactory to the Administrative Agent; provided that terms not consistent with the existing Term Loans that are only applicable after the Maturity Date shall not be subject to Administrative Agent consent, (iii) each Incremental Facility shall constitute a separate Facility hereunder, and shall be incorporated into the Credit Documents such that the Incremental Lenders have similar rights and privileges to the Revolving Lenders and Term Loan 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 ~~this subsection 2.5 shall~~ 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 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 ~~the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments~~ in Section 5.9 (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), providedand, 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 ~~Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder,~~ joinder agreements to ~~the consent of~~ give effect thereto as the Administrative Agent may reasonably request. (e) 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, Increased Term Loan, or Incremental Facility therein. For the avoidance of doubt, such ~~consent not~~ 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 “B” term loan throughout the Credit Documents. (f) Upon executing the joinder documentation requested by the Administrative Agent, each bank, financial institution or other entity committing to be ~~unreasonably withheld~~ a new Term Loan Lender, new Revolving Lender, or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Incremental Lender shall ~~be subject to the provisions of subsection 10.6(h), mutatis mutandis,~~ become a Lender for all purposes and to the same extent as if ~~such Incremental Commitments~~ originally a party hereto and ~~related Obligations had been obtained~~ shall be bound by ~~such Lender by way~~ and entitled to the benefits of ~~assignment). (c) Supplemental Term Loan Commitments shall become commitments under~~ this Agreement ~~pursuant to a supplement specifying~~ and the ~~Tranche to be increased~~other Credit Documents, ~~executed~~ and shall benefit equally and ratably from the Guarantees and security interests (if applicable) created by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 Security 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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 Borrowerany.

Appears in 1 contract

Samples: Credit Agreement (Mednax, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan credit facilities~~ loans or (B) increases (an “Incremental Term Loan Increase”) to ~~be included in this Agreement~~ an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero) of Indebtedness that~~ 10 Business Days after the date on which such notice is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered ~~a certificate~~ to the Administrative Agent~~, certifying compliance with~~ . The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the ~~financial test set forth in such clause~~ Incremental Commitments; provided that (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ i) no Lender will be required to provide such Incremental ~~Commitment~~ Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than ~~Supplemental Term Loan Commitments) shall be made by creating~~ a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institutionLender, an ~~“Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate~~ affiliate of a Lender ~~hereunder~~or an Approved Fund, shall be reasonably acceptable to ~~the consent of~~ the Administrative Agent (with such ~~consent~~ acceptance by the Administrative Agent to not to be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the ~~consent~~ Incremental Revolving Commitments other than a Lender, an affiliate of ~~any swingline lender~~ a Lender or ~~issuing lender~~an Approved Fund, as shall be reasonably acceptable to each Issuing Lender (with such acceptance by the ~~case may be, that may then be required pursuant~~ Issuing Lenders to ~~subsection 10.6 (such consent~~ not to be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (~~it being understood that any~~ i) no Default or Event of Default shall have occurred and be continuing on such ~~Additional Lender that is an Affiliated Lender~~ Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) the Borrower shall be ~~subject~~ in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to ~~the provisions of subsection 10.6(h), mutatis mutandis,~~ Section 6.1 after giving effect to ~~the same extent as if~~ such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related ~~Obligations~~ Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, 55 (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 50 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had ~~been obtained by~~ occurred on such ~~Lender by way~~ date of ~~assignment)~~determination. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. 57 The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. For the avoidance of doubt, ~~provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than constitute Incremental Term Loans ~~secured on a junior basis by the Collateral or ranking junior in right~~ for all purposes of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date this Agreement and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other ~~than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term~~ Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerDocuments.

Appears in 1 contract

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

Incremental Facilities. (a1) ~~So long as no Event of Default under subsection 8(a~~Subject to Sections 2.15(3) ~~or (f) exists or would arise therefrom~~and 2.15(4), the Borrower ~~shall have~~ may by written notice to the ~~right, at any time and~~ Administrative Agent from time to time ~~after the Closing Date,~~ (ieach such notice an “Incremental Commitment Request”) elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (x) additional first lien term ~~loan~~ A credit facilities ~~to be included~~ or increases in ~~this Agreement~~ the aggregate maximum permitted Principal Outstanding under either or both Tranches of the Term A Facility (the “Incremental Term ~~Loan~~ A Commitments”), (iiy) ~~to increase~~ additional first lien term B credit facilities or increases in the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ aggregate maximum permitted Principal Outstanding under the Term B Facility (the “~~Supplemental~~ Incremental Term ~~Loan~~ B Commitments”); and collectively with the Incremental Term A Commitments, the “Incremental Term Commitments” or (~~iii~~z) ~~to request new commitments under one or more new~~ additional first lien revolving facilities ~~to be included~~ or increases in ~~this Agreement~~ the aggregate maximum permitted Principal Outstanding under the Revolving Facility (the “Incremental Revolving Facility Commitments”), ) and the Operating Facility (~~iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together~~ the “Incremental Operating Facility Commitment”; and collectively with the Incremental Term ~~Loan~~ A Commitments, ~~Supplemental~~ the Incremental Term ~~Loan~~ B Commitments and the Incremental ~~Revolving Commitments~~Operating Facility Commitment, the “Incremental Commitments”), ~~provided~~ in an aggregate principal amount for all Incremental Commitments taken together not to exceed the greater of the following (the “Incremental Facility Limit”) (a) US$500 million and (b) an amount such that, after giving effect to the ~~FourthSixth Amendment Effective Date, (i) the aggregate principal amount~~ incurrence of Debt under such Incremental Commitments ~~permitted~~ pursuant to this ~~subsection 2.5 is limited~~clause (b) (and after giving pro forma effect to any acquisition consummated concurrently therewith and any other acquisition, at disposition, debt incurrence, debt retirement and other appropriate pro forma adjustment events, including any Debt incurrence or repayment subsequent to the ~~time~~ end of the ~~respective Incremental Commitment becomes effective,~~ applicable Test Period and on or prior to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ date of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at~~ such ~~time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i~~incurrence), the Borrower would be in compliance, on a pro forma basis, with a First Lien Debt Leverage Ratio for the Test Period most recently ended equal to or less than 3.50:1.00. (2) Each Incremental Commitment Request shall ~~have delivered a certificate~~ specify the date on which the Borrower proposes that the Incremental Commitment requested therein shall become effective. In connection with the incurrence of any Debt under this Section 2.15, the Borrower shall provide to the Administrative ~~Agent,~~ Agent a certificate certifying ~~compliance with~~ that the ~~financial test set forth in such clause~~ Incremental Commitments do not exceed the Incremental Facility Limit (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 which certificate shall be in ~~a minimum aggregate amount~~ reasonable detail and shall provide the calculations and basis therefor and classify such Debt as being incurred under clause (a) or clause (b) of ~~at least $15,000,000~~ the definition of “Incremental Facility Limit” (which classification may be reclassified) and that the conditions in ~~integral multiples of $1,000,000 in excess thereof~~Section 2.15(4) have been satisfied. (b3) ~~Each~~ The Lenders at the time of any request ~~from~~ under Section 2.15(1) shall not be obliged to participate in any Incremental Facility and the Borrower ~~pursuant~~ may pursue and include new lenders to ~~this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant~~ assist in funding any Incremental Commitments~~. The~~ ; provided that the addition of new lenders under such Incremental ~~Commitments~~ Facility shall be subject to: (~~or any portion thereof~~a) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed)~~ and, in the case of Incremental Revolving Facilities, each Issuing Bank under the Revolving Facility and the ~~consent~~ Swingline Lender; (b) the provision by the Administrative Agent of notice of the submission by the Borrower of a request under Section 2.15(1) not less than five Business Days prior to the date of any ~~swingline lender~~ increase in the aggregate Commitments; (c) the execution and delivery by such new lenders of such accession or ~~issuing lender,~~ similar agreements as may be advised by Lenders’ Counsel in order that such new lenders shall be bound by the ~~case~~ terms and conditions of this Agreement; and (d) compliance by such lenders with such reasonable procedures as may ~~be, that may then be required pursuant to subsection 10.6~~ established by the Administrative Agent in connection with the establishment of such Incremental Facility. (~~such consent not to be unreasonably withheld or delayed~~4) ~~(it being understood that~~ The effectiveness of any ~~such Additional Lender that is an Affiliated Lender~~ Incremental Commitments shall be subject to the ~~provisions of subsection 10.6(h)~~following conditions (the date upon which any Incremental Commitments become effective, ~~mutatis mutandis,~~ the “Increased Amount Date”): (i) subject to “SunGard” conditions equivalent or similar to the ~~same extent as if~~ Certain Funds Provisions in the case of any Incremental Commitments the proceeds of which will be used to fund an Acquisition or other similar material Investment permitted under the Credit Facility Documents, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) subject to “SunGard” provisions equivalent or similar to the Certain Funds Provisions in the case of any Incremental Commitments the proceeds of which will be used to fund an Acquisition or other similar Investment permitted under the Credit Facility Documents, all representations and warranties shall be true and correct in all material respects immediately prior to, and after giving effect to, the incurrence of 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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any ~~Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans);~~ representation and warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (~~ii) no Lender will be required~~ after giving effect to ~~provide~~ any such ~~Incremental Commitment unless it so agrees;~~ qualification therein)), (iii) the maturity date ~~and~~ of any Incremental Term B Commitments shall be no earlier than the Initial Term B Maturity Date, (iv) the weighted average life to maturity of ~~such~~ any Incremental Term B Commitments shall be no ~~earlier~~ shorter than ~~or shorter than, as the case may be, the Maturity Date or~~ the weighted average life to maturity of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting~~ Initial Term ~~Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans~~B Commitments, ~~and~~ (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (ivv) the interest ~~rate~~ margins ~~applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any~~ for such Incremental Term ~~Loans,~~ B Commitments shall be determined by the Borrower and the ~~applicable Additional Lenders~~lenders of such Incremental Term B Commitments; provided ~~that,~~ that in the event that the ~~applicable interest rate margins~~ all in yield for ~~any term loans Incurred by the Borrower under~~ any Incremental Term ~~Loan Commitment are higher~~ B Commitments is greater than the ~~applicable interest rate margin~~ all in yield for ~~any~~ the Initial Term ~~Loans~~ B Commitments by more than 50 basis ~~points~~points (the “Yield Differential”), then the Applicable Margin for ~~such~~ the Initial Term ~~Loans~~ B Commitments shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans is equal to the applicable interest rate margins~~ all in yield for such Incremental Term ~~Loan Commitment minus~~ B Commitments is not more than 50 basis ~~points~~points higher than the all in yield for the Initial Term B Commitments, and (vi) any Incremental Revolving Facility Commitments shall be pursuant to documentation consistent with the Initial Revolving Facility Commitments and any Incremental Term Commitments shall be pursuant to documentation to be determined; provided ~~further~~ that, in to the extent such terms and documentation relating to any Incremental Term B Facility are not consistent with the Initial Term B Commitments (except to the extent permitted by clauses (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent. (5) For purposes of determining the interest margins applicable ~~interest rate margins for the Term Loans and~~ to the Incremental Term ~~Loans~~B Commitments and the Yield Differential for the Initial Term B Commitments, (A) ~~original issue discount (“OID”)~~ 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 for the account of the Initial Term B Lenders ~~under such 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~~ customary arrangement or ~~other~~ similar fees payable to the applicable lead arrangers (or their respective Affiliates) in connection with the ~~Incremental~~ Initial Term ~~Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded;~~ B Commitments or to one or more arrangers (Cor their Affiliates) ~~any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but prior to the time~~ of such Incremental Term ~~Loans~~ B Commitments shall ~~also~~ be ~~included in such calculations~~ excluded and (DC) if the Adjusted LIBOR or ABR floor for such Incremental Term ~~Loans include an interest rate floor~~ B Commitments is greater than the ~~interest rate~~ Adjusted LIBOR or ABR floor, respectively, for the Initial Term B Commitments, the difference between such floor ~~applicable to~~ for such Incremental Term ~~Loans, such increased amount~~ B Commitments and the Initial Term B Commitments shall be equated to ~~the applicable interest rate margin for purposes of determining whether~~ an increase to in the Applicable Margin ~~for such Term Loans shall be required,~~ to the extent an increase in the interest rate floor ~~for~~ in such Initial Term ~~Loans~~ B Commitments 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~~interest rate margin) applicable to such Initial Term ~~Loans~~ B Commitments shall be increased by such increased amount; . (v6) An amount not to exceed the then available unused capacity with respect to the incurrence of Debt under Incremental Commitments may, subject to compliance with the requirements set forth in clauses (i) through (iv) of Section 2.15(4) (except that (A) customary bridge facilities shall be permitted notwithstanding clauses (iii) and (iv) of Section 2.15(4) and (B) any such ~~Incremental Commitment Amendment may provide (1)~~ Debt that is secured on a pari passu basis with the Credit Facilities shall be in the form of notes), be used by the Borrower for the ~~inclusion, as appropriate,~~ incurrence of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted ~~Obligations” and “Refinancing~~ Other Indebtedness~~” and subsection 7.8(b)~~, in each case ~~only~~ (if secured) to ~~extend~~ be subject to a First Lien Intercreditor Agreement or a Second Lien Intercreditor Agreement, as applicable; provided that the ~~maturity date and~~ Borrower shall be in pro forma compliance with the ~~weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans~~ Financial Covenants after giving effect to the ~~extended maturity date~~ incurrence thereof; provided, further, that any such Permitted Other Indebtedness shall be deemed to be First Lien Obligations for the purposes of determining compliance with any future incurrence test, whether or not so secured (all such debt in this paragraph (6), “Incremental Equivalent Debt”). (7) On any Increased Amount Date on which any Incremental Revolving Facility Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (a) each of the ~~weighted average life~~ Revolving Lenders with Initial Revolving Facility Commitments shall assign to ~~maturity~~ each Revolving Lender with an Incremental Revolving Facility Commitment (each, an “Incremental Revolving Lender”) and each Incremental Revolving Lender shall purchase from each of the Lenders with Initial Revolving Facility Commitments, at the principal amount thereof, such interests in the Loans outstanding thereunder on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Principal Outstanding under the Revolving Facility will be held by existing Revolving Lenders and Incremental Revolving Lenders rateably in accordance with their respective Revolving Facility Commitments after giving effect to the addition of such Incremental ~~Term Loans~~Revolving Facility Commitments to the existing Revolving Facility Commitments, and (b) (i) each Incremental Revolving Facility Commitment shall be deemed for all purposes a Revolving Facility Commitment and (ii) each Incremental Revolving Lender shall become a Lender with respect to its Incremental Revolving Facility Commitment and all matters relating thereto; provided that (x) the Administrative Agent, the Swingline Lender and each Issuing Bank under the Revolving Facility shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Lender providing such Incremental Revolving Facility Commitment to the extent such consent, if any, would be required under Section 14.8 for an assignment of Revolving Facility Loans or Revolving Facility Commitments, as applicable, to such Incremental Revolving Lender and (4y) with respect to any existing Bankers’ Acceptances and BA Equivalent Loans under the Revolving Facility which are outstanding on such Increased Amount Date, the above assignments and purchases will be deferred until the expiry of the applicable Interest Period(s) for such existing Bankers’ Acceptances and BA Equivalent Loans. (8) On any Increased Amount Date on which any Incremental Term Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (a) each of the Term Lenders with Incremental Term Commitments shall make an Advance to the Borrower in an amount equal to its Incremental Term Commitment, and (ii) each Incremental Term Lender shall become a Lender hereunder with respect to its Incremental Term Commitment and the Advances thereunder made pursuant thereto. (9) Incremental Revolving Facility Commitments shall be treated the same as the Class of Revolving Facility Commitments being increased (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Revolving Facility being increased. (10) Incremental Term A Commitments shall be treated the same as the Class of Term A Commitments being increased (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Term A Facility being increased. (11) The terms and provisions of Incremental Term Loans and Incremental Term Loan Commitments of any Class shall be on terms and documentation set forth in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed applicable Extension/Incremental/Refinancing Amendment as determined by the Borrower; provided that such terms comply with the requirements of Section 2.15(4) to the extent applicable. Any Incremental Revolving Facility Commitments or Incremental Term Loan made on an Increased Amount Date shall, at the ~~Administrative Agent~~ election of the Borrower and agreed to by the Lenders providing such Incremental Revolving Facility Commitments or Incremental Term Commitments, be designated as (~~including~~ a) a separate Class (of Term Loans for all purposes of this Agreement or (b) part of a Class of existing Term Loans or Revolving Loans for all purposes of this Agreement. (12) The Borrower shall provide a certificate of a Senior Officer delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the Increase Amount Date for any ~~swingline lender~~ Incremental Facility, together with a reasonably detailed description of the material terms and conditions of such Incremental Facility or ~~issuing lender);~~ drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the applicable requirements of this Section 2.15. (vi13) Each Extension/Incremental/Refinancing Amendment Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other ~~terms and documentation~~ Credit Facility Documents as may be necessary or appropriate, in ~~respect thereof~~the opinion of the Agents, to effect the ~~extent not consistent with~~ provisions of this ~~Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~Section 2.15.

Appears in 1 contract

Samples: Restated Credit Agreement (Maxar Technologies Ltd.)

Appears in 1 contract

Samples: Credit Agreement (Hd Supply, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Hd Supply, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Original Term Loan Maturity Date (with respect to Original Term Loans) and the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero~~10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) ~~of Indebtedness that is permitted~~ no Lender will be required to ~~be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at~~ provide such ~~time plus (B) $250 million~~ Incremental Commitment and (ii) if any entity providing all or a portion of the Incremental Commitments other than a Lender, an ~~Incremental Commitment is to~~ affiliate of a Lender or an Approved Fund, shall be ~~incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate~~ reasonably acceptable to the Administrative ~~Agent, certifying compliance with the financial test set forth in such clause~~ Agent (~~together with calculations demonstrating compliance~~ with such ~~ratio~~acceptance by the Administrative Agent to not be unreasonably withheld or delayed). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request from~~ In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower ~~pursuant to this subsection 2.5~~ shall ~~set forth the requested amount and proposed terms~~ be in compliance with Section 7.1 as of the ~~relevant Incremental Commitments. The~~ most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any ~~portion thereof~~Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) except for any Incremental Tranche A Term Loans, if the final maturity date of any Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of theirsuch Term Loans (other than the Incremental Tranche A Term Loans), which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, suchthe Applicable Margin for thesuch Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term LoanLoans (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for thesuch Term Loans (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, (y) the OID or upfront fees paid to all of the Lenders in respect of theirsuch Term Loans (other than the Incremental Tranche A Term Loans) and (z) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be ~~made~~ increased by ~~any existing Lender~~ an additional 200 basis points in the form of an additional OID or ~~by any other bank or financial institution~~ upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~any such existing Lender and any such bank or other financial institution, an “Additional Lender”~~vii), ~~provided~~and (viii) the Increment Revolving Commitments, ~~if such Additional Lender is not already~~ the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a ~~Lender hereunder or an Affiliate of a Lender hereunder,~~ form reasonably acceptable to ~~the consent of~~ the Administrative Agent (~~such consent not~~ each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be ~~unreasonably withheld or delayed) and~~ bound to the ~~consent~~ terms of ~~any swingline lender or issuing lender,~~ this Agreement as ~~the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is~~ a Lender. Any Incremental Term Loans made on an ~~Affiliated Lender~~ Increased Amount Date shall be ~~subject to~~ designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of ~~subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments~~ clauses (vi) and ~~related Obligations had been obtained by such Lender by way~~ (vii) above shall be determined separately for each tranche of ~~assignment)~~Term Loans. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. Notwithstanding anything in this Agreement to the contrary, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior references to the Term Loans ~~and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans~~ in this Section 2.23 shall be deemed to ~~be secured by any Collateral or other assets of any Loan Party that do not also secure~~ include the Replacement Term Loans and (IIii) ~~so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply~~ the references to the ~~applicable Term~~ Revolving Commitments or the Revolving Loans ~~(other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ in ~~right of payment, which~~ this Section 2.23 shall be ~~subject~~ deemed to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than include the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Extended Revolving 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Extended Revolving Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Incremental Facilities Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(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,~~ Date to (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”), ) and/or (ii) to increase the ~~loans in any Tranche by requesting new term loan commitments to be added to~~ Total Revolving Commitment (each, an ~~existing Tranche of Loans (the~~ “~~Supplemental Term Loan Commitments”)~~Incremental Revolving Facility” and, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (~~such commitments, the “Incremental Revolving Commitments”)” and, ~~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 (~~together with the Incremental Term Loan Commitments, ~~Supplemental Term Loan Commitments and the Incremental Revolving Commitments,~~ the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”); and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount; provided that, after giving pro forma effect to any Incurrence or discharge of Indebtedness on the ~~FourthSixth Amendment Effective Date, (i)~~ date the ~~aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective~~ applicable Incremental Commitment Agreement becomes ~~effective,~~ effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve (A) 12)-month period ending on the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i)most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) (and the Borrower shall ~~have delivered~~ deliver a ~~certificate~~ certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative ~~Agent,~~ Agent certifying that the Borrower is in compliance with ~~the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~this Section 4.17). Any ~~loans made~~ Incremental Term Loan Commitment Incurred in ~~respect~~ the form of increases to any ~~such Incremental Commitment~~ Class of existing Term Loans shall be identical to (other than ~~Supplemental~~ (x) with respect to “original issue discount” or upfront fees and (y) any increase to the scheduled amortization payments applicable to any Class of Term Loans necessary to make such Incremental Term Loan ~~Commitments~~fungible with any Class of existing Term Loans) and form part of such Term Loans. Any Incremental Revolving Commitments shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant~~ Incurred in the form of increases to ~~this subsection 2.5~~ the Revolving Commitments and shall be ~~in a minimum aggregate amount~~ identical to (other than with respect to upfront fees) and form part of ~~at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof~~such Revolving Facility. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 4.17 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”)) subject, ~~provided~~(i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or ~~an Affiliate~~ any affiliate of a Lender hereunder, ) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed~~) and the consent~~ ). Any allocation of any ~~swingline lender or issuing lender, as the case may be, that may then be required pursuant~~ Incremental Commitments to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that~~ any ~~such Additional Lender that is an~~ Affiliated Lender shall be subject to the ~~provisions~~ terms of ~~subsection 10.6(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~~Section 11.6(g). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (OPENLANE, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) The Parent Borrower or the Foreign Subsidiary Borrower may by written notice to the Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the commitments thereto, the “~~Incremental~~ New Term Loan Commitments”), and (ii) the Parent Borrower or the Foreign Subsidiary Borrower may by written notice to ~~increase~~ Administrative Agent elect to request the ~~loans~~ establishment of one or more increases in ~~any Tranche by requesting new term loan commitments to~~ Series 2013 Revolving Credit Commitments or Series 2016 Revolving Credit Commitments, which may be ~~added to an existing Tranche of Loans~~ Series 2013 U.S. Revolving Credit Commitments or Series 2016 U.S. Revolving Credit Commitments (the “~~Supplemental~~ New U.S. Revolving Credit Commitments”) or Series 2013 Spanish Revolving Credit Commitments or Series 2016 Spanish Revolving Credit Commitments (the “New Spanish Revolving Credit Commitments” and, together with the New U.S. Revolving Credit Commitments, the “New Revolving Credit Commitments”; the New Revolving Credit Commitments together with the New Term Loan Commitments, collectively, the “New Loan Commitments”), in the case of clauses (~~iii~~a)(i) ~~to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”),~~ and (iva)(ii) ~~to request new letter~~ by an aggregate amount not in excess of ~~credit facility commitments under one or more new letter of credit facilities to be included~~ the Maximum Incremental Facilities Amount in this Agreement (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate ~~principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at~~ from the ~~time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (~~Restatement Effective Date and not less than ~~zero~~$25,000,000 individually (or such lesser amount as (x) ~~of Indebtedness that is permitted to~~ may be ~~Incurred under subsection 7.1(b)(xiv)(i)~~ approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrower ~~or its Restricted Subsidiaries at~~ proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such ~~time plus (B) $250 million and (ii) if any portion of an Incremental Commitment~~ notice is ~~to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have~~ delivered ~~a certificate~~ to the Administrative Agent. The applicable Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, ~~certifying compliance with~~ in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the ~~financial test~~ applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, each of the conditions set forth in ~~such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments)~~ Section 7 shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term~~ satisfied; (iii) the New Loan ~~Facility made available~~ Commitments shall be effected pursuant to ~~this subsection 2.5~~ one or more Joinder Agreements executed and delivered by the applicable Borrower and the Administrative Agent, and each of which shall be recorded in ~~a minimum aggregate amount of at least $15,000,000~~ the Register and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the ~~provisions of subsection 10.6(h~~requirements set forth in Section 5.4(c) and (b)~~, mutatis mutandis, to~~ ; (iv) 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~~ applicable Borrower shall ~~become commitments under this Agreement~~ make any payments required pursuant to ~~a supplement specifying~~ Section 2.11 in connection with the ~~Tranche~~ New Loan Commitments, as applicable; and (v) the applicable Borrower shall deliver or cause to be ~~increased, executed~~ delivered any legal opinions or other documents reasonably requested by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent ~~for recording~~ in ~~the Register~~connection with any such transaction. ~~Upon effectiveness of the Lender Joinder Agreement each Additional Lender~~ Any New Term Loans made on an Increased Amount Date shall be designated a ~~Lender, and the term loan made pursuant to such Supplemental~~ separate series (a “Series”) of New Term ~~Loan Commitment shall be a Loan under the applicable Tranche,~~ Loans for all ~~intents and~~ purposes of this Agreement. (di) ~~Incremental~~ On any Increased Amount Date on which New U.S. Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (~~other than Supplemental Term Loan Commitments~~A) the Parent Borrower shall ~~become commitments under this Agreement~~ have made arrangements with the Administrative Agent to prepay certain U.S. Revolving Credit Loans on any Increased Amount Date pursuant to ~~an amendment (an “Incremental Commitment Amendment”~~procedures substantially similar to the procedures set forth in Section 2.1(h) 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 hereof with such ~~amendments to any Loan Documents~~ changes as may be necessary or ~~appropriate, in~~ advisable as may be agreed by the ~~opinion of the~~ Parent Borrower and the Administrative ~~Agent~~Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New U.S. Revolving Credit Commitment (each, a “New U.S. Revolving Credit Lender”) shall become a Lender with respect to the U.S. Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New U.S. Revolving Credit Loan”) shall be deemed for all purposes a U.S. Revolving Credit Loan of the applicable Series. (ii) On any Increased Amount Date on which New Spanish Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) the Parent Borrower shall have made arrangements with the Administrative Agent to prepay certain Spanish Revolving Credit Loans on any Increased Amount Date pursuant to procedures substantially similar to the procedures set forth in Section 2.1(h) hereof with such changes as may be necessary or advisable as may be agreed by the Parent Borrower and the Administrative Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New Spanish Revolving Credit Commitment (each, a “New Spanish Revolving Credit Lender”, together with the “New U.S. Revolving Credit Lenders”, the “New Revolving Credit Lenders”) shall become a Lender with respect to the Spanish Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New Spanish Revolving Credit Loan”, together with the “New U.S. Revolving Credit Loans”, the “New Revolving Credit Loans”) shall be deemed for all purposes a Spanish Revolving Credit Loan of the applicable Series. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of ~~this subsection 2.5~~the New Term Loans and New Term Loan Commitments of any Series shall be, ~~provided~~except as otherwise set forth herein or in the applicable Joinder Agreement, ~~however,~~ identical to the existing Series 2018 Extended Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Series 2018 Extended Term Loan Maturity Date and mandatory prepayment and other payment rights (Aother than scheduled amortization) ~~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 Term Loans, (B) the Incremental Commitments and 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 New 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 existing Series 2018 Extended Term Loans and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be ~~subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans)~~identical, ~~provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans);~~ (ii) ~~no Lender will~~ the rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be ~~required to provide any such Incremental Commitment unless it so agrees~~determined by the applicable Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that (~~iii~~x) ~~the maturity date and~~ the weighted average life to maturity of ~~such Incremental Commitments~~ all New Term Loans shall be no ~~earlier~~ shorter than ~~or shorter than, as the case may be, the Maturity Date or~~ the weighted average life to maturity of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental~~ existing Series 2018 Extended Term Loans ~~constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans,~~ and (by) ~~an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, subject to customary conditions, would either be automatically converted into~~ if the Applicable LIBOR Margin 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 Maturity Date~~ Applicable ABR Margin in respect of the New Term ~~B-45~~ Loans exceeds the Applicable LIBOR Margin or ~~the weighted average life to maturity of the Term B-45 Loans~~Applicable ABR Margin, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the applicable Additional Lenders; provided that, in respect of 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 any~~ existing Series 2018 Extended Term Loans by more than ~~50 basis points~~0.50%, ~~then~~ the Applicable LIBOR Margin ~~for such~~ or Applicable ABR Margin in respect of the existing Series 2018 Extended Term ~~Loans~~ Loans, as applicable, shall be ~~increased~~ adjusted to ~~the extent necessary so that the applicable interest rate margin for such Term Loans is~~ be equal to the ~~applicable interest rate margins for such Incremental~~ Applicable LIBOR Margin or Applicable ABR Margin, as applicable, in respect of the New Term ~~Loan Commitment~~ Loans minus ~~50 basis points~~0.50%; ~~provided further that~~provided, further, that in determining the ~~applicable interest rate margins for the Term Loans~~ Applicable LIBOR Margin and ~~the Incremental Term Loans~~Applicable ABR Margin, (Ax) original issue discount ~~(“OID”)~~ or upfront fees ~~payable generally to all participating Additional Lenders in lieu of OID~~ (which shall be deemed to constitute a like ~~amounts~~ amount of ~~OID~~original issue discount) ~~payable~~ paid by the ~~Borrower~~ Borrowers to the New Term Loan Lenders under the New Term Loans and to the Lenders ~~under such~~ of the existing Series 2018 Extended Term Loans ~~or any Incremental~~ (calculated in the case of the Series 2018 Extended Term Loans on a weighted average basis to include all consent fees paid to Series 2018 Extended Term Loan Lenders on the Restatement Effective Date pursuant to Section 7(a) and 7(b) of the Second Amendment) in the initial primary syndication thereof (or, in the case of the Series 2018 Extended Term Loans in connection with the Second Amendment) shall be included and equated to interest rate (with ~~OID~~ original issue discount being equated to interest based on an assumed four-year life to maturity); , provided that for purposes of this clause (~~B) any arrangement~~x), ~~structuring or other~~ fees ~~payable~~ in ~~connection with~~ the ~~Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans~~ nature of arranging fees shall be ~~excluded;~~ excluded in any such determination and (Cy) any amendments to the Applicable LIBOR Margin ~~on any~~ or Applicable ABR Margin in respect of the Series 2018 Extended Term Loans that ~~became~~ become effective subsequent to the ~~FifthSixth Amendment~~ Restatement Effective Date but prior to the time of such ~~Incremental~~ New Term Loans shall also be included in such ~~calculations and (D)~~ calculations; provided, further, that if the ~~Incremental~~ LIBOR Rate (or ABR) in respect of the New Term Loans ~~include an interest rate~~ includes a floor greater than the ~~interest rate~~ LIBOR floor (or ABR floor, as applicable) applicable to ~~such~~ the Series 2018 Extended Term Loans, such ~~increased~~ excess amount shall be equated to ~~the applicable~~ interest ~~rate~~ margin for purposes of determining ~~whether an~~ any increase to the Applicable Margin ~~for such~~ in respect of the Series 2018 Extended Term Loans; and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Series 2018 Extended Term Loans shall be ~~required,~~ reasonably acceptable to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Credit Loans and the ~~Lenders providing~~ New Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the Revolving Credit Commitments, respectively. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such ~~Commitments (including any swingline lender or issuing lender);~~ amendments to this Agreement and ~~(vi)~~ the other ~~terms and documentation~~ Credit Documents as may be necessary or appropriate, in ~~respect thereof~~the opinion of the Administrative Agent, to effect the ~~extent not consistent with~~ provisions of this ~~Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~Section 2.14.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(a) or (f)~~ exists or would arise therefrom, the Borrower (or, solely in respect of an Incremental Revolving Facility that increases the Total 2024 Canadian Revolving Facility Commitments, the Canadian Borrower) shall have the right, at any time and from time to time after the Closing ~~Date,~~ Date to (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”)) and/or, (ii) to increase the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ Total Revolving Commitment (~~the “Supplemental Term Loan Commitments”),~~ eachClosing Date Revolving Facility Commitments and/or (iii) ~~to request new commitments under one or more new revolving facilities to be included~~ increase the Total 2024 Canadian Revolving Facility Commitments (each increase described in ~~this Agreement~~ the foregoing clauses (ii) and (iii), an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Facility Commitments”)” and, ~~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 (~~together with the Incremental Term Loan Commitments, ~~Supplemental Term Loan Commitments and the Incremental Revolving Commitments,~~ the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”); and the loans thereunder, “Incremental Revolving Facility Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount; provided that, (A) after giving pro forma effect to any Incurrence or discharge of Indebtedness on the ~~FourthSixth Amendment Effective~~ date the applicable Incremental Commitment Agreement becomes effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (iassuming compliance with Section 8.1 was required on the Test Date) (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that the Borrower is in compliance with this Section 4.17) and (B) the aggregate principal amount of all Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be Revolving Facilities incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form ~~attached hereto as Exhibit O (~~of an increase of the ~~“Increase Supplement”) or by each Additional Lender that is~~ Total 2024 Canadian Revolving Facility Commitments shall not ~~an existing Lender substantially~~ exceed C$75,000,000. Any Incremental Term Loan Commitment Incurred in the form ~~attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which~~ of increases to any Class of existing Term Loans shall be ~~delivered~~ identical to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (ax) with respect to “original issue discount” or upfront fees and (y) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable increase to the ~~loans made pursuant to the Incremental Commitments, and the~~ scheduled amortization ~~schedule~~ payments applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Class of Term Loans ~~by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased~~ necessary to ~~the extent necessary so that the applicable interest rate margin for such Term Loans is equal to the applicable interest rate margins for~~ make such Incremental Term Loan ~~Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental~~ fungible with any Class of existing Term Loans~~, (A~~) ~~original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu~~ and form part of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such Term Loans~~, such increased amount~~ . Any Incremental Closing Date Revolving Facility Commitments shall be ~~equated~~ Incurred in the form of increases to the ~~applicable interest rate margin for purposes~~ Closing Date Revolving Facility Commitments and shall be identical to (other than with respect to upfront fees) and form part of ~~determining whether an increase~~ suchthe Closing Date Revolving Facility. Any Incremental 2024 Canadian Revolving Facility Commitments shall be Incurred in the form of increases to the ~~Applicable Margin for such Term Loans~~ 2024 Canadian Revolving Facility Commitments and shall be ~~required,~~ identical to ~~the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunder,~~ (other than with respect to upfront fees) and in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, form part of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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 2024 Canadian Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerFacility.

Appears in 1 contract

Samples: First Amendment Agreement (OPENLANE, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower ~~shall have the right~~may, at any ~~time and from time~~ time, on one or more occasions pursuant to ~~time after the Closing Date,~~ an Incremental Facility Agreement (i) ~~to request new term loan commitments under~~ add one or more new tranches of term ~~loan credit~~ facilities ~~to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to~~ and/or increase the ~~loans in~~ principal amount of the Tranche B-1 Term Loans, the Tranche B-2 Term Loans or any ~~Tranche~~ Additional Term Loans by requesting new term loan commitments to be added to ~~an existing Tranche of~~ such Loans (~~the~~ any such new tranche or increase, an “~~Supplemental~~ Incremental Term ~~Loan Commitments~~Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”), ) and/or (~~iii~~ii) ~~to request new commitments under~~ add one or more new tranches of incremental revolving “cash-flow” facilities ~~to be included in this Agreement~~ and/or increase the aggregate amount of Commitments of any existing Class of Incremental Revolving Commitments (~~the~~ any such new tranche or increase, an “Incremental Revolving ~~Commitments~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”); and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that: (i) no Incremental Commitment may be less than $5,000,000, (ii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Commitment or Incremental Loan, (iv) no Incremental Revolving Facility will mature earlier than any then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to ~~request new letter~~ such Maturity Date, (v) the Effective Yield applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that in the case of ~~credit facility commitments under one or~~ any Incremental Term Facility which are pari passu with the Initial Term Loans in right of payment and with respect to security, such Effective Yield applicable thereto will not be more ~~new letter~~ than 0.50% higher than the Effective Yield applicable to the Class of ~~credit facilities~~ Initial Term Loans denominated in the same currency as such Incremental Term Facility unless the Applicable Rate with respect to such Initial Term Loans is adjusted to be ~~included in this Agreement (together~~ equal to the Effective Yield with respect to the relevant Incremental Term ~~Loan Commitments~~Facility, ~~Supplemental~~ minus 0.50%, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, Maturity Date at the time of the ~~respective~~ incurrence thereof, (vii) the Weighted Average Life to Maturity of any Incremental ~~Commitment becomes effective,~~ Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and pari passu with or junior to any then-existing tranche of Term Loans with respect to security or may be unsecured (and to the ~~aggregate principal amount (not less than zero~~extent the relevant Incremental Facility is pari passu with or subordinated to the Term Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) ~~of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus~~ and (B) ~~$250 million~~ no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral, (A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (iiB) if any ~~portion~~ prepayment (other than any scheduled amortization payment) of an Incremental ~~Commitment is~~ Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be ~~incurred in reliance~~ made on ~~subsection 7.1(b)(xiv)(i~~a junior basis with respect to such existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the lenders providing the relevant Incremental Term Loans shall ~~have delivered~~ be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a ~~certificate~~ less than pro rata basis (but not on a greater than pro rata basis), (x) except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility, (xi) except as otherwise required or permitted in clauses (v) through (ix) above, all other terms of any Incremental Term Facility, if not consistent with the terms of the Initial Term Loans, shall be reasonably satisfactory to the Borrower and the Administrative Agent (it being understood that (x) any terms which are not consistent with the terms of the Initial Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date shall be deemed satisfactory to the Administrative Agent and (y) terms contained in such Incremental Term Facility that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Agreement) shall be deemed satisfactory to the Administrative Agent), (xii) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement, (xiii) on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, ~~certifying compliance with~~ and notwithstanding anything to the ~~financial test~~ contrary set forth in ~~such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ Section 2.08 or 2.13, such Incremental ~~Commitment (other than Supplemental~~ Term ~~Loan Commitments)~~ Loans shall be ~~made by creating~~ added to (and constitute a ~~new Tranche. Each~~ part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental ~~Commitment under anythe~~ Term ~~Loan~~ Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class; and (xiv) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility ~~made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of~~ at ~~least $15,000,000 and in integral multiples of $1,000,000 in excess thereof~~any time. (b) ~~Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The~~ Incremental Commitments ~~(or any portion thereof)~~ may be ~~made~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or financial institution~~ lender (other than any Disqualified Institution) (any such ~~existing Lender and any such bank or~~ other ~~financial institution,~~ lender being called an “Additional Lender”)~~, provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ ; provided that the Administrative Agent shall have consented (such consent not to be unreasonably ~~withheld or delayed~~withheld) ~~and~~ to the relevant Additional Lender’s provision of Incremental Commitments if such consent ~~of any swingline lender or issuing lender, as the case may be, that may then~~ would be required ~~pursuant~~ under Section 9.05(b) for an assignment of Loans to ~~subsection 10.6 (~~such ~~consent not to be unreasonably withheld or delayed) (it being understood~~ Additional Lender; provided further that any ~~such~~ Additional Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). (c) ~~Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing~~ Each Lender ~~substantially in the form attached hereto as Exhibit O (the “Increase Supplement”)~~ or ~~by each~~ Additional Lender ~~that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which~~ providing a portion of any Incremental Commitment shall ~~be delivered~~ execute and deliver to the Administrative Agent ~~for recording in~~ and the ~~Register~~Borrower all such documentation (including the relevant Incremental Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. ~~Upon effectiveness~~ On the effective date of ~~the Lender Joinder Agreement~~ such Incremental Commitment, each Additional Lender shall be become a ~~Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche,~~ Lender for all ~~intents and~~ purposes of in connection with this Agreement. (d) As a condition precedent to the effectiveness of any Incremental ~~Commitments~~ Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an Administrative Questionnaire and such other ~~than Supplemental~~ documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof: (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied. (e) To the extent the Borrower elects to implement any Incremental Revolving Facility, then notwithstanding any other provision of this Agreement to the contrary, the Borrower shall be permitted (without the consent of any Term ~~Loan Commitments~~Lender) ~~shall become commitments under~~ to amend the terms of this Agreement pursuant to an amendment hereto (or an “amendment and restatement hereof), in form and substance reasonably satisfactory to the Administrative Agent, in order to appropriately incorporate revolving facility provisions, including those relating to (i) conditions to borrowing, payments, prepayments, purchases of participations and reallocation mechanisms, letter of credit, swingline and/or other subfacilities, (ii) mechanisms to allow for additional Incremental ~~Commitment Amendment”~~Revolving Facilities (e.g. pro rata treatment and exceptions to such pro rata treatment upon the maturity of any such Incremental Revolving Facility), (iii) tranche voting by revolving lenders with respect to conditions precedent to the making of revolving loans, any financial covenant required in connection with any Incremental Revolving Facility and definitions relating to the foregoing and (iv) consent by any issuing bank or swingline lender to matters affecting its rights or obligations in such capacity. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement ~~and, as appropriate,~~ and the other Loan ~~Documents, executed by~~ Documents with the ~~Borrower~~ Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to this Section 2.22 and ~~each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect~~ such technical amendments ~~to any Loan Documents~~ as may be necessary or ~~appropriate,~~ appropriate in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent, to effect the provisions of this subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 fees payable in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22. (f) To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans ~~that are not shared with all Additional Lenders providing~~ add such Incremental Term Loans ~~shall be excluded; (C) any amendments~~ to the ~~Applicable Margin on any~~ then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the or Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which will end on the last day of such Interest Period). (4g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the ~~case~~ proceeds of any Incremental Facility are intended to be applied to finance an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent acquisition and the Lenders or Additional Lenders providing such ~~Commitments~~ Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (~~including~~ h) This Section 2.22 shall supersede any ~~swingline lender~~ provision in Section 2.18 or ~~issuing lender); and (vi) the other terms and documentation in respect thereof,~~ 9.02 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~~contrary.

Appears in 1 contract

Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a~~The Borrowers’ Agent and any one or more Lenders (including New Lenders) ~~or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and~~ may from time to time ~~after~~ agree that such Lenders shall make, obtain or increase the ~~Closing Date~~amount of their Term Loans (any such Terms Loans, “Incremental Term Loans”)) or Revolving Commitments, as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) ~~to request new term loan commitments under one~~ the amount of such increase and the Facility or ~~more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”)~~Facilities involved, (ii) ~~to increase~~ the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”),~~ applicable Increased Facility Closing Date and (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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 Term Loans and the Incremental Term Loans, (A) ~~original issue discount~~ the applicable Incremental Term Maturity Date, (~~“OID”~~B) the amortization schedule for such Incremental Term Loans, and (C) the Applicable Margin for such Incremental Term Loans; provided, that (1) upon the effectiveness of each Incremental Term Loan or ~~upfront fees payable generally to all participating Additional Lenders~~ increase in ~~lieu~~ Revolving Commitments no Default or Event of ~~OID~~ Default has occurred and is continuing or shall result therefrom; (~~which shall be deemed to constitute like amounts of OID~~2) ~~payable by the Borrower~~ on a Pro Forma Basis after giving effect to the ~~Lenders under such~~ incurrence of any Incremental Term Loans or ~~any Incremental Term Loan~~ increased Revolving Commitments, (assuming in the ~~initial primary syndication thereof shall be included~~ case of an increase in the Revolving Commitments the full drawing of such increased Revolving Commitments and, without duplication, after giving effect to (~~with OID being equated to interest based~~ x) the borrowing of any Revolving Loans on ~~an assumed four-year life to maturity);~~ such day under such increased Revolving Commitments, (By) other permitted pro forma adjustment events and (z) any ~~arrangement, structuring or other fees payable in connection with~~ permanent repayment of Indebtedness after the ~~Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to~~ beginning of the ~~Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date~~ relevant determination period but prior to or simultaneous with borrowing), the ~~time~~ MLP is in compliance with the financial covenants in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, the Weighted Average Life to Maturity of such Incremental Term Loans shall ~~also~~ not be ~~included in such calculations and~~ shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (D4) if upon the effectiveness of each incurrence of any Incremental Term Loans ~~include an interest rate floor greater than~~ or increase in Revolving Commitments, each of the ~~interest rate floor applicable~~ representations and warranties made by any Loan Party in or pursuant to ~~such Term Loans, such increased amount~~ the Loan Documents shall be ~~equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Term Loans shall be required,~~ true and correct in all material respects (except to the extent ~~an increase~~ (i) any such representations and warranties relate, by their terms, to a specific date, in ~~the interest rate floor for~~ which case such ~~Term Loans would cause an increase in the interest rate then in effect thereunder,~~ representations and ~~in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans~~ warranties shall be ~~increased~~ true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such ~~amount;~~ representations and warranties shall be true and correct in all respects) and (v5) ~~such Incremental Commitment Amendment may provide (1) for~~ the ~~inclusion~~Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to real property Collateral as ~~appropriate,~~ required by applicable law and as reasonably required by the Administrative Agent to comply with applicable Law or the requirements of its regulators. Notwithstanding the ~~Additional Lenders in any required vote or action of the Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder~~foregoing, (2i) ~~class voting and other class protections for any additional credit facilities, (3) for~~ the ~~amendment~~ aggregate amount of ~~the definitions~~ borrowings of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Incremental Term Loans and ~~weighted average life~~ incremental Revolving Commitments obtained after the Closing Date pursuant to ~~maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable,~~ this paragraph shall not exceed $200,000,000 and (4ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000. 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 (which consent shall not be unreasonably withheld) of the Borrowers’ Agent, the Administrative Agent, the Issuing Lenders (in the case of ~~an Incremental~~ a Revolving ~~Commitment~~Facility only) and the Swingline Lender (in the case of a Revolving Facility only), ~~add, or provide for adjustments to, the definition of~~ elects to become a “~~Agent Default,” “Defaulting~~ Lender” ~~protections and appropriate modifications to subsection 2.7 to provide for~~ under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “~~amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations~~New Lender Supplement”), substantially in ~~each case on terms~~ the form of Exhibit H, 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 ~~Borrower~~Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the ~~Administrative~~ Borrowers 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 (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 Borrowers’ Agent and the ~~Lenders providing such Commitments (including any swingline lender or issuing lender~~relevant 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.

Appears in 1 contract

Samples: Credit Agreement (SunCoke Energy Partners, L.P.)

Incremental Facilities. (a) ~~So long~~ The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment increase the aggregate amount of Commitments of any existing Class of Commitments or establish a new Class of Commitments (any such increase or new Class of Commitments, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed $50,000,000; provided that any new Class of Commitments shall be a “last-out” Incremental Revolving Facility that ranks junior in right of payment and/or security to this ABL Facility; provided, further, that: (i) Incremental Revolving Loans shall be available in Dollars only; (ii) unless the Administrative Agent otherwise agrees, no Incremental Revolving Facility may be less than $5,000,000; (iii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such Incremental Revolving Commitment shall be within the sole and absolute discretion of such Lender; (iv) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as an Incremental Revolving Lender; (v) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to this ABL Facility, except (A) with respect to structuring, commitment and arranger fees or other similar fees that may be agreed to among the Borrower and the Incremental Revolving Lenders and (B) with respect to any “last-out” Incremental Revolving Facility that ranks junior in right of payment and/or security to this ABL Facility, such Incremental Revolving Facility (x) shall be on terms (other than those described in clauses (y) and (z) below) reasonably satisfactory to the Administrative Agent and subject to customary terms and conditions for “last-out” asset based credit facilities, (y) may have interest rate margins, unused line fees, a “LIBOR floor” and/or “ABR floor” and other economic terms that are agreed to among the Borrower and the Incremental Revolving Lenders and (z) shall have a later scheduled maturity date than the Final Maturity Date; (vi) no Event of Default ~~under subsection 8(a)~~ shall exist immediately prior to or ~~(f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time~~ after giving effect 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”), (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 “such Incremental Revolving ~~Commitments”), and~~ Facility; (ivvii) ~~to request new letter~~ the final maturity of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the any Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) Facility shall be ~~made by creating a new Tranche. Each~~ no earlier than the Final Maturity Date; and (viii) any Incremental ~~Commitment under anythe Term Loan~~ Revolving Facility ~~made available pursuant~~ may rank pari passu or junior in right of payment and pari passu or junior in priority with respect to ~~this subsection 2.5 shall be~~ proceeds of Revolving Credit Collateral (as defined in ~~a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof~~the Intercreditor Agreement). (b) ~~Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant~~ Incremental ~~Commitments. The Incremental~~ Revolving Commitments ~~(or any portion thereof)~~ may be ~~made~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or financial institution~~ lender (other than any Disqualified Institution) (any such ~~existing Lender and any such bank or~~ other ~~financial institution,~~ lender being called an “Additional Revolving Lender”)~~, provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ ; provided that the Administrative ~~Agent~~ Agent, any Letter of Credit Issuer and the Swingline Lender shall have consented (such consent not to be unreasonably ~~withheld or delayed~~withheld) ~~and~~ to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent ~~of any swingline lender or issuing lender, as the case may be, that may then~~ would be required ~~pursuant~~ under Section 9.04(b) for an assignment of Revolving Loans to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any~~ such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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)Revolving Lender. (c) ~~Supplemental Term Loan Commitments~~ Each Incremental Revolving Lender providing a portion of any Incremental Revolving Commitment shall ~~become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower~~ execute and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered deliver to the Administrative Agent ~~for recording in~~ and the ~~Register~~Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. ~~Upon effectiveness~~ On the effective date of ~~the Lender Joinder Agreement~~ such Incremental Revolving Commitment, (i) each Additional Revolving Lender shall be become a ~~Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche,~~ Lender for all ~~intents~~ purposes in connection with this Agreement, (ii) all Incremental Revolving Commitments shall become Commitments for all purposes in connection with this Agreement and (iii) all Incremental Revolving Loans shall become U.S. Loans for all purposes of in connection with this Agreement. (d) ~~Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant~~ As conditions precedent 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~~ effectiveness of any ~~other Lender~~Incremental Revolving Facility or the making of any Incremental Revolving Loans, 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 subsection 2.5, provided, however, that (i) ~~(A)~~ upon its reasonable request, the ~~Incremental Commitments will not be guaranteed by any Subsidiary~~ Administrative Agent shall have received customary written opinions of ~~the Borrower other than the Subsidiary Guarantors~~counsel, ~~and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans~~as well as such reaffirmation agreements, ~~(B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”)~~ supplements and/or amendments as it shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the 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 Term Loans are outstandingreasonably require, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) ~~no Lender will be required to provide any~~ the Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such ~~Incremental Commitment unless~~ other documents as it ~~so agrees;~~ shall reasonably require from such Additional Revolving Lender, and (iii) the ~~maturity date~~ Administrative Agent shall have received a certificate of the applicable Borrowers signed by Responsible Officers thereof: (1) certifying and attaching a copy of the ~~weighted average life~~ resolutions adopted by the governing body or Board of Directors of the applicable Borrowers approving or consenting to ~~maturity~~ such Incremental Revolving Facility or Incremental Revolving Loans, and (2) to the extent applicable, certifying that the condition set forth in clause (a)(vi) above has been satisfied. (i) Upon the implementation of any Incremental Revolving Facility, each then-existing Lender will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such ~~Incremental Commitments shall be no earlier than~~ existing Lender’s participations hereunder in outstanding Letters of Credit or ~~shorter than~~Swingline Loans such that, ~~as the case may be~~after giving effect to each deemed assignment and assumption of participations, ~~the Maturity Date or the weighted average life to maturity~~ all of the ~~Term B-45 Loans~~ Lenders’ (~~other than (a~~including each Incremental Revolving Lender) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, subject to customary conditions, would either be automatically converted into participations hereunder in Letters of Credit 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Swingline Loans shall be ~~increased~~ held ratably on the basis of their respective Commitments of the applicable Class (after giving effect to any increase in the Commitment pursuant to this Section 2.23) and (ii) the existing Lenders of the applicable Class shall assign 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 Loans, in each case, to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority Lenders or of the Lenders of such Class participate in each ~~Tranche hereunder~~outstanding borrowing of 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 2.23); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (e). (f) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit and the Swingline Sublimit permitted hereunder shall increase by an amount, if any, agreed upon by the (i) Administrative Agent, (2ii) ~~class voting and other class protections for any additional credit facilities, (3) for~~ the ~~amendment~~ Letter of ~~the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date~~ Credit Issuer and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term LoansSwingline Lender, as applicable, and (4iii) the Borrower. (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and any other amendments to this Agreement and the other Credit Documents as may be necessary in order to establish new Classes in respect of Loans or Commitments increased or extended pursuant to this Section 2.23 and such technical amendments as may be necessary or appropriate in the ~~case~~ reasonable opinion of ~~an Incremental Revolving Commitment, add, or provide for adjustments to,~~ the ~~definition~~ Administrative Agent and the Borrower in connection with the establishment of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations)such new Classes, in each case on terms 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~~ Section 2.23. (h) Notwithstanding to the contrary in this Section 2.23 or in any other provision of any Credit Document, if the proceeds on the date of effectiveness of any Incremental ~~Commitment Amendment~~Revolving Facility are intended to be applied to finance a Permitted Acquisition and the Incremental Revolving Lenders so agree, the availability thereof shall ~~otherwise~~ be ~~reasonably satisfactory~~ subject to customary “SunGard” or “certain funds” conditionality. (i) This Section 2.23 shall supersede any provision in Section 2.16 or 9.08 to the ~~Borrower~~contrary.

Appears in 1 contract

Samples: Abl Credit Agreement (Claire's Holdings LLC)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a), (b), (h) or (fi) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), at any time and from time to time after the Closing Date, (i) to request new term loan commitments, including delayed draw term loan commitments (the “New Delayed Draw 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 ~~loans in any Tranche~~ Existing Loans by requesting new term loan commitments to be added to an ~~existing~~ Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”)” and, (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 (together with the Incremental Term Loan ~~Commitments, Supplemental Term Loan Commitments and the Incremental Revolving~~ Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) (x) the aggregate ~~principal~~ amount of Incremental Commitments (other than New Delayed Draw Term Loan Commitments if the Borrower, at its option, has elected to establish such New Delayed Draw Term Loan Commitments in compliance with the immediately following subclause (y)) permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective~~effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (y) if the Borrower, at its option, has elected to establish New Delayed Draw Term Loan Commitments in compliance with this subclause (y), the aggregate amount of such New Delayed Draw Term Loan Commitments shall be unlimited at the time such New Delayed Draw Term Loan Commitments are established; provided that, (A) ~~the aggregate principal amount (not less than zero) of Indebtedness that is permitted to~~ Term Loans may only be Incurred ~~under subsection 7.1(b)(xiv)(i~~in respect of such New Delayed Draw Term Loan Commitments if at the time of Incurrence thereof (and after giving effect to the application of proceeds of any such Term Loans to refinance any other Indebtedness), such Indebtedness could be incurred in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus~~ and (B) ~~$250 million~~ prior to the time that any such New Delayed Draw Term Loan Commitments are funded, any such New Delayed Draw Term Loan Commitments that have not yet been funded shall not be included in the determination of “Required Lenders” or “Term Credit Percentage” and (ii) if any portion of an Incremental Commitment (or any Term Loan Incurred in respect of New Delayed Draw Term Loan Commitments) is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i~~Subsection 8.1(b)(i)(II), the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered (or, in the case of any Term Loan Incurred in respect of New Delayed Draw Term Loan Commitments, as a condition to the funding of such Term Loans) 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~~test). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lower minimum amounts or multiples as agreed to by the 92 Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan ~~under~~ Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or increase interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.or

Appears in 1 contract

Samples: Term Loan Credit Agreement (Cornerstone Building Brands, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom,~~ The Borrower may by written notice to the ~~Borrower shall have the right, at any time and from time to time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (x) additional term ~~loan credit facilities to~~ loans, which may be ~~included in this Agreement~~ of the same Class as any then-existing Term B Loans (a “Term B Increase”) or a separate Class of Term B Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term ~~Loan~~ B Commitments”), (iiy) ~~to increase~~ additional term letter of credit loans, which may be of the ~~loans in~~ same Class as any ~~Tranche by requesting new term loan commitments to be added to an~~ then-existing ~~Tranche~~ Term C Loans (a “Term C Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “~~Supplemental~~ Incremental Term ~~Loan~~ C Commitments”)) and/or (z) revolving credit commitments, 100 which may be of the same Class as any then-existing Revolving Commitments (~~iii~~the commitments thereto, the “Additional Revolving Commitments”) ~~to request new~~ or a separate Class of Revolving Commitments (the commitments ~~under one or more new revolving facilities to be included in this Agreement (~~thereto, the “New Revolving Commitments” and, together with the Additional Revolving Commitments, 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 (~~; together with the Incremental Term ~~Loan Commitments, Supplemental Term Loan~~ B Commitments and the Incremental ~~Revolving~~ Term C Commitments, the “Incremental Commitments”), ~~provided that~~by an aggregate principal amount, ~~after the FourthSixth Amendment Effective Date, (i)~~ when combined with the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be all Permitted Other Debt incurred in reliance on ~~subsection 7.1(b)(xiv)(i~~Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(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 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 Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have ~~delivered a certificate~~ no obligation to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 approach any existing Lender ~~or by~~ to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other ~~bank or financial institution~~ than as described in the immediately succeeding clause (~~any such existing Lender and any such bank or other financial institution, an “Additional Lender”~~y), ~~provided, if~~ no Event of Default shall exist on such ~~Additional Lender is not already a Lender hereunder~~ Increased Amount Date immediately before or ~~an Affiliate of a Lender hereunder,~~ immediately after giving effect to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and ~~related Obligations had been obtained by~~ the borrowing of any Incremental Loans thereunder or (y) if such ~~Lender by way~~ Incremental Commitment is being provided in connection with a Limited Condition Transaction, then no Event of ~~assignment).~~ Default under (cA) ~~Supplemental Term Loan Commitments~~ Section 11.1 or Section 11.5 shall ~~become commitments under this Agreement pursuant to a supplement specifying the Tranche to~~ exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be ~~increased, executed~~ required by the ~~Borrower~~ Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and ~~each increasing Lender substantially~~ the borrowing of any Incremental Loans thereunder, (ii) in ~~the form attached hereto as Exhibit O (the “Increase Supplement”)~~ connection with any incurrence of Incremental Loans, or ~~by each Additional Lender that is not~~ establishment of Incremental Commitments, on an ~~existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)~~Increased Amount Date, ~~as the case may be, which~~ there shall be ~~delivered~~ no requirement for the Borrower to bring down the ~~Administrative Agent for recording in~~ representations and warranties under the ~~Register. Upon effectiveness~~ Credit Documents unless and until requested by the Persons holding more than 50% of the ~~Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the~~ applicable ~~Tranche, for all intents and purposes of this Agreement. (d)~~ Incremental Loans or 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 appropriateprovided that, in the ~~opinion~~ case of Incremental Loans or Incremental Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall 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 Commitments), (iii) the Incremental 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 ~~effect~~ the ~~provisions~~ requirements set forth in Section 5.4(e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental 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 ~~subsection 2.5~~Agreement, ~~provided~~(a) any Incremental Term B Loans made on an Increased Amount Date shall be designated (x) a separate series of Term B Loans or (y) in the case of a Term B Increase, ~~however~~a part of the series of existing Term B Loans subject to such increase, ~~that~~ (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 Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Commitments or (y) in the case of a Additional Revolving Commitment, a part of the series of existing Revolving Commitments subject to such increase (such 101 new or existing series of Term B Loans, Term C Loans or Revolving Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving Commitment of the Class being increased by such Additional Revolving Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with a Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving 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 Lender holding Revolving Loans (Aincluding each such Additional Revolving Lender), as applicable, will equal the percentage of the aggregate Total Revolving Commitments of all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving 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 Loans of such Class will be held by existing Revolving Lenders under such Class and Additional Revolving Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Additional Revolving Commitments to such existing Revolving 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 Commitments, (i) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under an Additional Revolving Commitment (each, an “Additional Revolving Loan”) and each loan made under an New Revolving Commitment (each, a “New Revolving Loan” and, together with the Additional Revolving Loans, the “Incremental Revolving Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving Commitment (each, a “New Revolving Lender” and, together with the Additional Revolving Lenders, the “Incremental Revolving Lenders”) shall become a Revolving Lender with respect to the applicable Incremental Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term B 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 B Commitment (each, an “Incremental Term B Lender”) of any Series shall make a term loan to the Borrower (each, an “Incremental Term B Loan”) in an amount equal to its Incremental Term B Commitment of such Series, and (ii) each Incremental Term B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto and (y) on which any Incremental Term C Commitments ~~will not be guaranteed by~~ of any ~~Subsidiary~~ Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Commitment (each, an “Incremental Term C Lender”) of any Series shall make a term letter of credit loan to the Borrower ~~other than~~ (each, an “Incremental Term C Loan” and, together with the ~~Subsidiary Guarantors,~~ Incremental Term B Loans and ~~will be secured on a pari passu or (at~~ the ~~Borrower’s option) junior basis by the same Collateral securing the Term~~ Incremental Revolving Loans, ~~(B) the Incremental Commitments and any incremental loans drawn thereunder (~~collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Commitment of such Series, and (ii) each Incremental Term C Lender of any 102 Series shall ~~rank pari passu~~ become a Lender hereunder with respect to the Incremental Term C Commitment of such Series and the Incremental Term C 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 B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, in ~~right~~ each case effected pursuant to a Term B Increase or Term C Increase shall be substantially identical to the terms and provisions applicable to the Class of ~~payment~~ Term B Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, end of term, amendment, 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 B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments or ~~(at~~ Incremental Term C Commitments may be paid in connection with such Incremental Term B Commitments or Incremental Term C Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related Term L/C Commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans of any Series not effected pursuant to a Term B Increase or Term C Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower~~’s option~~; provided that: (i) ~~junior to~~ (x) the applicable Incremental Term ~~Loans~~ B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (Cy) the applicable Incremental Term C Maturity Date of each Series shall be no ~~Incremental Commitment Amendment may provide for~~ earlier than the Initial Term C Maturity Date, provided, the requirements of the foregoing clause (Ii) shall not apply to 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)~~ customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term ~~Loans are outstanding~~B Loans); provided, ~~any mandatory prepayment provisions that do~~ the requirements of the foregoing clause (ii) shall not ~~also~~ apply to any customary bridge facility so long as the ~~applicable Term Loans~~ Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (~~other than~~ iii) the Incremental Term B Loans, Incremental Term B Commitments, Incremental Term C Loans ~~secured~~ and Incremental Term C Commitments (x) may participate on a ~~junior~~ pro rata basis, greater than pro rata basis ~~by the Collateral~~ or ~~ranking junior~~ less than pro rata basis in ~~right~~ any voluntary prepayment of ~~payment, which shall be subject to junior prepayment provisions)~~ any Class of Term B Loans hereunder and may participate on a pro rata basis or less than pro rata basis (or but, except as otherwise ~~provide for more favorable prepayment treatment for such~~ permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term B Loans ~~than such Incremental Loans),~~ hereunder; provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Term Loans is equal to the applicable interest rate margins for if such Incremental Term ~~Loan Commitment minus 50~~ B Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term B Loans or Incremental Term C Loans shall participate on a junior basis ~~points; provided further that, in determining the applicable interest rate margins for the~~ with respect to mandatory repayments of Term B Loans and ~~the Incremental~~ Term ~~Loans,~~ C Loans hereunder (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 such 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 fees payable except in connection with ~~the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C)~~ any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such Term Loansrefinancing, ~~such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Term Loans shall be required~~extension, ~~to the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunder~~renewal, ~~and in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased~~ replacement, repurchase or retirement thereof permitted by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(bthis Agreement), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.103

Appears in 1 contract

Samples: Credit Agreement (Talen Energy Corp)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom,~~ The Borrower may by written notice to the ~~Borrower shall have the right, at any time and from time to time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (xw) additional term ~~loan credit facilities to~~ loans, which may be ~~included in this Agreement~~ of the same Class as any then- existing Term B Loans (a “Term B Increase”) or a separate Class of Term B Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term ~~Loan~~ B Commitments”), (iix) ~~to increase~~ additional commitments consisting of one or more letter of credit facilities which may be of the ~~loans in~~ same Class as any ~~Tranche by requesting new term loan~~ then existing letter of credit facilities hereunder or a separate Class of letter of credit commitments ~~to be added to an existing Tranche of Loans~~ (such commitments, collectively, the “~~Supplemental Term Loan~~ Incremental Letter of Credit Commitments”), (~~iii~~y) ~~to request new~~ additional term letter of credit loans, which may be of the same Class as any then- existing Term C Loans (a “Term C Increase”) or a separate Class of Term C Loans (the commitments ~~under one~~ for additional term loans of the same Class or ~~more new~~ a separate Class, collectively, the “Incremental Term C Commitments”) and/or (z) revolving ~~facilities to~~ credit commitments, which may be ~~included in this Agreement~~ of the same Class as any then- existing Revolving Commitments (the commitments thereto, the “Additional Revolving Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “New Revolving Commitments” and, together with the Additional Revolving Commitments, 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 (~~; together with the Incremental Term ~~Loan~~ B Commitments and, the Incremental Term C Commitments, ~~Supplemental~~ the “Incremental Term ~~Loan~~ C Commitments and the Incremental ~~Revolving~~ Letter of Credit Commitments, the “Incremental Commitments”), ~~provided that~~by an aggregate principal amount, ~~after the FourthSixth Amendment Effective Date, (i)~~ when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections Section 10.01(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental ~~Commitments permitted pursuant to this subsection 2.5 is limited,~~ 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 ~~respective~~ 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 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 Commitments; provided, that, any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment. In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date; provided, that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment ~~becomes effective~~is being provided in connection with a Limited Condition Transaction, to then no Event of Default under (A) ~~the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower~~ Section 11.01 or ~~its Restricted Subsidiaries at~~ Section 11.05 shall exist on such ~~time plus~~ Increased Amount Date and (B) ~~$250 million~~ such other provisions of Article Xi as may otherwise be required by the Lenders providing the applicable Incremental Commitment immediately before or immediately after giving effect to such Incremental Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental 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 unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Commitments (provided, that, in the case of Incremental Loans or Incremental Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall 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 Commitments), (iii) the Incremental Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to Additional Revolving Commitments, each of the Revolving Lenders with an existing Revolving Commitment of the Class being increased by such Additional Revolving Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with aan Additional Revolving Commitment of such Class (each, an “Additional Revolving Lender”), and each of such Additional Revolving Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving 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 Lender holding Revolving Loans (including each such Additional Revolving Lender), as applicable, will equal the percentage of the aggregate Total Revolving Commitments of all Revolving Lenders under the Credit Facilities, and (ii) ~~if any portion~~ at the principal amount thereof, such interests in the Revolving Loans of ~~an Incremental Commitment is~~ such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to ~~be incurred in reliance on subsection 7.1(b)(xiv)(i)~~all such assignments and assumptions, the ~~Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in~~ Revolving Loans of such clause (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and Class will be ~~secured on a pari passu or (at the Borrower’s option) junior basis~~ held by the same Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 existing Revolving Lenders under such ~~Term Loans or any Incremental Term Loan~~ Class and Additional Revolving Lenders under such Class ratably in ~~the initial primary syndication thereof shall be included (~~accordance with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing their respective Revolving Commitments of such ~~Incremental Term Loans shall be excluded; (C) any amendments~~ Class after giving effect to the ~~Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but prior to the time~~ addition 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~~ Additional Revolving Commitments to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental existing Revolving Commitments (~~and related Obligations), in each case on terms agreed by the Borrower,~~ 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 Commitments, (i) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under an Additional Revolving Commitment (each, an “Additional Revolving Loan”) and each loan made under an New Revolving Commitment (each, a “New Revolving Loan” and, together with the Additional Revolving Loans, the “Incremental Revolving Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each Additional Revolving Lender and each Revolving Lender with a New Revolving Commitment (each, a “New Revolving Lender” and, together with the Additional Revolving Lenders, the “Incremental Revolving Lenders”) shall become a Revolving Lender with respect to the applicable Incremental Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term B 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 B Commitment (each, an “Incremental Term B Lender”) of any Series shall make a term loan to the Borrower (each, an “Incremental Term B Loan”) in an amount equal to its Incremental Term B Commitment of such Series, and (ii) each Incremental Term B (d) The terms and provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, in each case, effected pursuant to a Term B Increase or Term C Increase shall be substantially identical to the terms and provisions applicable to the Class of Term B Loans or Term C Loans subject to such increase; provided, that, underwriting, arrangement, structuring, end of term, amendment, 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 B Commitments ~~(including~~ and any ~~swingline lender~~ Incremental Term C Commitments and the respective related Incremental Term B Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term B Commitments or ~~issuing lender);~~ Incremental Term C Commitments may be paid in connection with such Incremental Term B Commitments or Incremental Term C Commitments, provided, that,, upon any repayment of Incremental Term C Loans or reduction in related Term L/C Commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and ~~(vi)~~ provisions of any Incremental Term B Commitments and any Incremental Term C Commitments and the ~~other~~ respective related Incremental Term B Loans and Incremental Term C Loans of any Series not effected pursuant to a Term B Increase or Term C Increase shall be on terms and documentation set forth in ~~respect thereof~~the applicable Incremental Amendment as determined by the Borrower; provided, that: (i) (xii) (x) the applicable Incremental Term B Maturity Date of each Series shall be no earlier than the Initial Term B Maturity Date and (y) the applicable Incremental Term C Maturity Date of each Series shall be no earlier than the Initial Term C Maturity Date, provided, the requirements of the foregoing clause Error! Reference source not found. shall not apply to (x) any customary bridge facility so long as the ~~extent not consistent~~ Indebtedness into which such customary bridge facility is to be converted complies with ~~this Agreement as~~ such requirements or (y) any Indebtedness incurred in ~~effect prior~~ reliance on the Inside Maturity Basket; (ii) (xiii) the Weighted Average Life to Maturity of the applicable Incremental Term B Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term B Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term B Loans); provided, the requirements of the foregoing clause Error! Reference source not found. shall not apply to (x) any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements or (y) any Indebtedness incurred in reliance on the Inside Maturity Basket; (iii) (xiv) the Incremental ~~Commitment Amendment~~Term B Loans, ~~shall~~ Incremental Term B Commitments, Incremental Term C Loans and Incremental Term C 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 B Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise ~~be reasonably satisfactory to the Borrower.~~permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any

Appears in 1 contract

Samples: Credit Agreement (Talen Energy Corp)

Appears in 1 contract

Samples: Amendment Agreement

Appears in 1 contract

Samples: Credit Agreement (Hd Supply, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a~~The Borrower and any one or more Lenders (including New Lenders) ~~or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and~~ may from time to time ~~after~~ agree that such Lenders shall make, obtain or increase the ~~Closing Date~~amount of their Term Loans (any such Terms Loans, “Incremental Term Loans”)) or Revolving Commitments, as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) ~~to request new term loan commitments under one~~ the amount of such increase and the Facility or ~~more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”)~~Facilities involved, (ii) ~~to increase~~ the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”),~~ applicable Increased Facility Closing Date and (iii) ~~to request new commitments under one or more new revolving facilities to be included~~ in ~~this Agreement~~ the case of Incremental Term Loans, (A) the “applicable Incremental ~~Revolving Commitments”)~~Term Maturity Date, (B) the amortization schedule for such Incremental Term Loans, and (ivC) ~~to request new letter~~ the Applicable Margin for such Incremental Term Loans); provided, that (1) upon the effectiveness of ~~credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with the~~ each Incremental Term Loan ~~Commitments, Supplemental~~ or increase in Revolving Commitments no Default or Event of Default has occurred and is continuing or shall result therefrom; (2) on a Pro Forma Basis after giving effect to the incurrence of any Incremental Term ~~Loan Commitments and the Incremental~~ Loans or increased Revolving Commitments, (assuming in the ~~“Incremental~~ case of an increase in the Revolving Commitments the full drawing of such increased Revolving Commitments and, without duplication, after giving effect to (x) the borrowing of any Revolving Loans on such day under such increased Revolving Commitments”, (y) other permitted pro forma adjustment events and (z) any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with borrowing), ~~provided that~~the Borrower is in compliance with the financial covenants in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, ~~after~~ the ~~FourthSixth Amendment Effective Date~~Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except to the extent (i) any such representations and warranties relate, by their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and (5) the Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to real property Collateral as required by applicable law and as reasonably required by the Administrative Agent to comply with applicable Law or the requirements of its regulators. Notwithstanding the foregoing, (i) the aggregate ~~principal~~ amount of borrowings of Incremental Term Loans and incremental Revolving Commitments ~~permitted~~ obtained after the Closing Date pursuant to this ~~subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (~~paragraph shall not ~~less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B)~~ exceed $~~250 million~~ 50,000,000 and (ii) ~~if any portion~~ without the consent of ~~an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available each increase effected pursuant to this ~~subsection 2.5~~ paragraph shall be in a minimum ~~aggregate~~ amount of at least $~~15,000,000 and~~ 20,000,000. No Lender shall have any obligation to participate in ~~integral multiples of $1,000,000~~ any increase described in ~~excess thereof~~this paragraph unless it agrees to do so in its sole discretion. (b) Each request from the Borrower pursuant to this subsection 2.5 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 Any additional bank, financial institution ~~(any such existing Lender and any such bank~~ or other ~~financial institution~~entity which, ~~an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to~~ with the consent ~~of the Administrative Agent~~ (~~such~~ which consent shall not to be unreasonably ~~withheld or delayed~~withheld) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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, the Issuing Lenders (in the case of a Revolving Facility only) and the Swingline Lender (in the case of a Revolving Facility only), elects to ~~effect~~ become a “Lender” 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 ~~provisions~~ form of Exhibit I, 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 ~~subsection 2.5~~Agreement. (c) Unless otherwise agreed by the Administrative Agent, ~~provided~~on each Increased Facility Closing Date with respect to the Revolving Facility, ~~however~~the 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 (and, ~~that~~ in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) ~~(A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors,~~ each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) ~~no Lender will be required to provide any~~ the aggregate amount of each such ~~Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments shall be no earlier than~~ Type or shorter than, as the case may be, the Maturity Date or the weighted average life to maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, subject to customary conditions, would either be automatically converted into or required Eurodollar Tranche requested to be ~~exchanged for permanent financing which does not provide for an earlier maturity date~~ so borrowed or ~~a shorter weighted average life~~ effected had been proportionately increased. The Eurodollar Base Rate applicable to ~~maturity than~~ any Eurodollar Loan borrowed pursuant to the ~~Maturity Date of~~ preceding sentence shall equal the ~~Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins~~ Eurodollar Base Rate then applicable to the ~~loans made pursuant to~~ Eurodollar Loans of the ~~Incremental Commitments~~other Lenders in the same Eurodollar Tranche (or, ~~and~~ until the ~~amortization schedule applicable to any Incremental Term Loans~~expiration of the then-current Interest Period, such other rate as shall be ~~determined by~~ agreed upon between the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting relevant Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (SunCoke Energy, Inc.)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(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,~~ Restatement Effective Date to (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (each an “Incremental Term Facility” and collectively the “Incremental Term Loan Commitments”), ) and/or (ii) to increase the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ Total Revolving Credit Commitment (the “~~Supplemental Term Loan Commitments”)~~Incremental Revolving Facility” and such 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 (~~together with the Incremental Term Loan ~~Commitments, Supplemental Term Loan~~ Commitments ~~and the Incremental Revolving Commitments,~~ the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”)) so long as the aggregate then outstanding principal amount of the sum of all unutilized Incremental Commitments and Incremental Loans together with any amounts Incurred under Section 8.2(v) that were Incurred in reliance on the Fixed Incremental Amount does not exceed the Fixed Incremental Amount, plus if the Consolidated Senior Secured Leverage Ratio after giving effect to the Incurrence of Incremental Loans thereof (subject to Section 1.3) is less than or equal to 3.50 to 1.00 (assuming for purposes of such calculation that the Incremental Revolving Commitments being incurred at the time of such calculation are fully drawn and assuming that any unsecured notes are deemed to be secured ratably with the Facilities for purposes of calculating the Consolidated Senior Secured Leverage Ratio), an unlimited amount; provided that, after giving pro forma effect to any Incurrence or discharge of Indebtedness on the ~~FourthSixth Amendment Effective Date, (i)~~ date the ~~aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective~~ applicable Incremental Commitment Agreement (as defined below) becomes ~~effective,~~ effective (subject to (ASection 1.3) and all related transactions as if completed on the ~~aggregate principal amount (not less than zero)~~ first day of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance~~ twelve month period ending on ~~subsection 7.1(b)(xiv)(i)~~the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the terms hereof, was required on the Test Date) (and the Borrower shall ~~have delivered~~ deliver a ~~certificate~~ certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative ~~Agent,~~ Agent certifying that the Borrower is in compliance with ~~the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~this Section 4.17). Any loans made in respect of any such Incremental Term Commitment ~~(other than Supplemental Term Loan Commitments)~~ shall be made by creating a new Tranche. ~~Each~~ Any Incremental ~~Commitment under anythe Term Loan~~ Revolving Facility ~~made available pursuant to this subsection 2.5~~ Commitments shall be Incurred in ~~a minimum aggregate amount~~ the form of ~~at least $15,000,000~~ increases to the Revolving Credit Commitments and ~~in integral multiples~~ such Incremental Revolving Facility Commitment shall be identical to and form part of ~~$1,000,000 in excess thereof~~such Revolving Facility. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 4.17 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”)) subject, ~~provided~~(i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or ~~an Affiliate~~ any affiliate of a Lender hereunder, ) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed~~) and the consent~~ ). Any allocation of any ~~swingline lender or issuing lender, as the case may be, that may then be required pursuant~~ Incremental Commitments to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that~~ any ~~such Additional Lender that is an~~ Affiliated Lender shall be subject to the ~~provisions~~ terms of ~~subsection 10.6(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~~Section 11.6(g). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Incremental Commitment Agreement and Second Amendment (KAR Auction Services, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom,~~ The Borrower may by written notice to the ~~Borrower shall have the right, at any time and from time to time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ (x) additional term ~~loan credit facilities to~~ loans, which may be ~~included in this Agreement~~ of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (iiy) ~~to increase~~ additional term letter of credit loans, which may be of the ~~loans in~~ same Class as any ~~Tranche by requesting new term loan commitments to be added to an~~ then-existing ~~Tranche~~ Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “~~Supplemental~~ Incremental Term C Loan Commitments”)) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (~~iii~~the commitments thereto, the “New Revolving Credit Commitments”) ~~to request new~~ or a separate Class of Revolving Credit Commitments (the commitments ~~under one or more new revolving facilities to be included in this Agreement (~~thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit 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 (~~; together with the Incremental Term Loan ~~Commitments, Supplemental Term Loan~~ Commitments and the Incremental ~~Revolving~~ Term C Loan Commitments, the “Incremental Loan Commitments”), ~~provided that~~by an aggregate amount, ~~after the FourthSixth Amendment Effective Date, (i)~~ when combined with the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be all Permitted Other Debt incurred in reliance on ~~subsection 7.1(b)(xiv)(i~~Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(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 ~~delivered a certificate~~ no obligation to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 approach any existing Lender ~~or by~~ to provide any ~~other bank or financial institution (any such existing Lender and any such bank or other financial institution~~Incremental Loan Commitment. In each case, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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~~ effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), 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 notice, then no Event of Default under ~~this Agreement pursuant to a supplement specifying the Tranche to~~ (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 ~~increased, executed~~ required by the ~~Borrower~~ Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and ~~each increasing Lender substantially~~ the borrowing of any Incremental Loans thereunder, (ii) in ~~the form attached hereto as Exhibit O (the “Increase Supplement”)~~ connection with any incurrence of Incremental Loans, or ~~by each Additional Lender that is not~~ establishment of Incremental Loan Commitments, on an ~~existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)~~Increased Amount Date, ~~as the case may be, which~~ there shall be ~~delivered~~ no requirement for the Borrower to bring down the ~~Administrative Agent for recording in~~ representations and warranties under the ~~Register. Upon effectiveness~~ Credit Documents unless and until requested by the Persons holding more than 50% of the ~~Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term~~ applicable Incremental Loans or Incremental Loan ~~Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 appropriateprovided that, in the ~~opinion~~ case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall 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), (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, ~~to effect~~ and each of which shall be recorded in the ~~provisions of this subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors,~~ Register and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to ~~junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~the requirements set forth in Section 5.4(e), ~~provided that~~ and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental ~~Loans constituting Initial Term~~ Loan ~~Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no~~ Commitments, as applicable. No Lender ~~will be required~~ shall have any obligation to provide any ~~such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life~~ Commitments pursuant to ~~maturity~~ this Section 2.14(a). For all purposes of ~~such Incremental Commitments shall be no earlier than or shorter than~~this Agreement, ~~as the case may be, the Maturity Date or the weighted average life to maturity of the Term B-45 Loans (other than~~ (a) any Incremental ~~Commitments and related Incremental~~ Term Loans ~~constituting Initial Term Loan Refinancing Debt that may provide for~~ made on an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Increased Amount Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 Term Loans and the Incremental Term Loans, designated (Ax) ~~original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu~~ a separate series of ~~OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such~~ 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4y) 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 (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, ~~add~~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 ~~provide for adjustments to~~Revolving Credit Commitments, ~~the definition of~~ each, a “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related ObligationsSeries”), in each case on terms 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.

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Incremental Facilities. 95 Syniverse Credit Agreement (a) So long as no Default or Event of Default ~~under subsection 8(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 new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the ~~loans in any Tranche~~ 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”), ; provided that in no event shall there be more than three (3) revolving facilities outstanding under this Agreement at any one time and (iv) to ~~request~~ increase the existing Revolving Credit Facility by requesting new ~~letter of~~ revolving credit ~~facility~~ commitments ~~under one or more new letter of credit facilities~~ to be ~~included in this Agreement~~ added to an existing Tranche of Revolving Credit Loans (the “Supplemental Revolving Commitments” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Section 2.14 shall not exceed, at the time the respective Incremental Commitment becomes effective, ~~to (A)~~ the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million Maximum Incremental Facilities Amount and (ii) if the financial covenant set forth in Section 7.11 would be required to be tested on the date of Incurrence of any ~~portion of an~~ Incremental Commitment ~~is to be incurred~~ (in ~~reliance~~ the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments being initially provided on ~~subsection 7.1(b)(xiv)(i)~~any date of determination, as if Incurred in full on such date) if it were the last day of a fiscal quarter, the Borrower shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in compliance with the financial ~~test~~ covenant set forth in Section 7.11 on a Pro Forma Basis after giving effect to the Incurrence of any such ~~clause~~ Incremental Commitments for the most recently ended four full fiscal quarters for which internal financial statements are available (~~together with calculations demonstrating compliance with such ratio~~or, if earlier, were required to be delivered pursuant to Section 6.02(a) or (b)). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lesser amounts as the Administrative Agent may agree). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”), ~~provided~~provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any ~~swingline lender~~ Swing Line Lender or ~~issuing lender~~the L/C Issuer, as the case may be, that may ~~then~~ be required pursuant to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ Section 10.07 (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 10.07(i), 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 and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche or Revolving Credit Loan Tranche, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O K-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P K-2 (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~~ Register pursuant to which such Lender ~~Joinder Agreement each~~ or Additional Lender ~~shall be~~ agrees to commit to all or a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity portion of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 LoansFacility, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default~~Additional Lender,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i~~this Agreement in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of 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~~test). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan ~~under~~ Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term ~~Loans~~Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to a 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 payment with or (at the Borrower’s option) junior to the Term ~~Loans~~ Loan 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~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the Term ~~Loans~~ Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 ~~applicable~~ 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of ~~such~~ any 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith, which determination shall be conclusive), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as ~~applicable~~applicable or (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans~~ syndicated floating rate Incremental Term Loans denominated in Dollars with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased pursuant to the ~~extent necessary so that the applicable interest rate margin for such Term Loans is equal to the applicable interest rate margins for such~~ Ratio Incremental ~~Term Loan Commitment minus 50 basis points; provided further that~~Facility, ~~in determining the applicable interest rate margins for the Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”)~~ made on 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.the

Appears in 1 contract

Samples: Term Loan Credit Agreement (Core & Main, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Term Loan Maturity Date (with respect to Term Loans) and the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ (x) the establishment of one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) ~~to increase~~ increases in the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement Revolving Commitments (the “Incremental Revolving Commitments”)” and, ~~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 (~~together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $400,000,000; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero~~10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) ~~of Indebtedness that is permitted~~ no Lender will be required to ~~be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at~~ provide such ~~time plus (B) $250 million~~ Incremental Commitment and (ii) if any entity providing all or a portion of the Incremental Commitments other than a Lender, an ~~Incremental Commitment is to~~ affiliate of a Lender or an Approved Fund, shall be ~~incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate~~ reasonably acceptable to the Administrative ~~Agent, certifying compliance with the financial test set forth in such clause~~ Agent (~~together with calculations demonstrating compliance~~ with such ~~ratio~~acceptance by the Administrative Agent to not be unreasonably withheld or delayed). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request from~~ In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition, the Borrower ~~pursuant to this subsection 2.5~~ shall ~~set forth the requested amount and proposed terms~~ be in compliance with Section 7.1 as of the ~~relevant Incremental Commitments. The~~ most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the weighted average life to maturity of any Incremental Term Loan shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any ~~portion thereof~~Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of their Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date and (y) the upfront fees paid to all of the Lenders in respect of their Revolving Commitments, (vi) if the final maturity date of such Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 xxxxx xxxxxx, (xxx) if the final maturity date of such Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be ~~made~~ increased by ~~any existing Lender~~ an additional 200 basis points in the form of an additional OID or ~~by any other bank or financial institution~~ upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~any such existing Lender and any such bank or other financial institution, an “Additional Lender”~~vii), ~~provided~~and (viii) the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, ~~if such Additional Lender is not already~~ in each case, pursuant to one or more incremental commitment agreements in a ~~Lender hereunder or an Affiliate of a Lender hereunder,~~ form reasonably acceptable to ~~the consent of~~ the Administrative Agent (~~such consent not to be unreasonably withheld or delayed~~each, a “Incremental Commitment Agreement”) executed and delivered by the ~~consent of any swingline lender or issuing lender~~Borrower, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such applicable 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~~ Lender or the ~~Tranche to be increased, executed by the Borrower~~ Incremental Synthetic L/C Lender and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent ~~for recording in~~ pursuant to which the ~~Register~~applicable Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. ~~Upon effectiveness of the Lender Joinder Agreement each Additional Lender~~ Any Incremental Term Loans made on an Increased Amount Date shall be designated a ~~Lender, and the term loan made pursuant to such Supplemental~~ separate tranche of Incremental Term ~~Loan Commitment shall be a Loan under the applicable Tranche,~~ Loans for all ~~intents and~~ purposes of this Agreement. (dc) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (~~other than Supplemental Term~~ a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~Commitments) shall become commitments under this Agreement pursuant to an amendment~~ made thereunder (an “Incremental ~~Commitment Amendment~~Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to ~~this Agreement and~~the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to the Revolving Loans and the Revolving Commitments. (d) On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, ~~as appropriate~~subject to the satisfaction of the foregoing terms and conditions, ~~the other~~ (i) each Person with an Incremental Term Loan ~~Documents~~Commitment (each, ~~executed by~~ an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each ~~Additional~~ Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender~~. An~~ ”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. Notwithstanding anything in this Agreement to the contrary, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior references to the Term Loans ~~and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans~~ in this Section 2.23 shall be deemed to ~~be secured by any Collateral or other assets of any Loan Party that do not also secure~~ include the Replacement Term Loans and (IIii) ~~so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply~~ the references to the ~~applicable Term~~ Revolving Commitments or the Revolving Loans ~~(other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ in ~~right of payment, which~~ this Section 2.23 shall be ~~subject~~ deemed to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than include the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Extended Revolving 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Extended Revolving Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

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

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or~~ Upon written notice to the Administrative Agent (~~f) exists or would arise therefrom,~~ which shall promptly notify the ~~Borrower shall have the right~~Lenders), at any ~~time and from time to~~ time after the Closing Date, the Borrower may request (i) ~~to request new term loan commitments under~~ one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included~~ loans or increases in ~~this Agreement~~ any then-existing Term Facility (other than the Delayed Draw Term Facility) (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Term ~~Loan~~ Commitments”), ) and (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new~~ additional tranches of revolving ~~facilities~~ commitments or increases in the aggregate amount of any Class of Revolving Credit Commitments, including increases in the Letter of Credit Sublimit to ~~be included in this Agreement~~ the extent consented to by each affected L/C Issuer (each an “Incremental Revolving Credit Commitment” and all of them, collectively, the “Incremental Revolving Credit Commitments”)” and, ~~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 (~~together with the Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving~~ Commitments, the “Incremental Commitments”); provided that no Lender shall be required to participate in any Incremental Facility; provided, ~~provided that~~further, that after ~~the FourthSixth Amendment Effective Date~~giving effect to any such addition, ~~(i)~~ the aggregate principal amount of Incremental Commitments ~~permitted~~ that have been added pursuant to this ~~subsection 2.5 is limited~~Section 2.14 shall not exceed the sum of (x) the Fixed Dollar Amount minus the aggregate principal amount of (i) all Incremental Second Lien Commitments that have been added pursuant to clause (x) of Section 2.14 of the Second Lien Credit Agreement, at (ii) all Permitted Other Indebtedness incurred under clause (x) of the ~~time~~ definition thereof and (iii) all Permitted Other Second Lien Indebtedness incurred under clause (x) of the ~~respective Incremental Commitment becomes effective~~definition thereof, to plus (Ay) the aggregate principal amount of all voluntary terminations of any portion of the Revolving Credit Commitments pursuant to Section 2.06(a) and all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(i) and (~~not less than zero~~iv) ~~of Indebtedness that is permitted~~ and Section 10.07(i) (to ~~be Incurred under subsection 7.1(b)(xiv)(i)~~ the extent made by the Borrower or any of its ~~Restricted Subsidiaries~~ Subsidiaries), in each case made at or prior to such time ~~plus~~ (Bin each case, other than (i) ~~$250 million~~ prepayments of Indebtedness incurred in reliance on clause (z) of this Section 2.14(a) and (ii) ~~if any portion~~ prepayments funded with proceeds of ~~an Incremental Commitment is to be~~ Indebtedness) minus the aggregate principal amount of all Permitted Other Indebtedness incurred ~~in reliance~~ under clause (y) of the definition thereof, plus (z) such additional amount so long as, after giving effect on ~~subsection 7.1(b)(xiv)(i), the Borrower shall have delivered~~ a ~~certificate~~ Pro Forma Basis to the ~~Administrative Agent, certifying compliance with~~ incurrence thereof (assuming for such purposes that the ~~financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ entire amount of any such Incremental ~~Commitment~~ Commitments and all previous Incremental Commitments were fully funded) cause the First Lien Net Leverage Ratio (~~other than Supplemental Term Loan Commitments~~without netting the cash and Cash Equivalents constituting proceeds of the applicable Incremental Facilities) ~~shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available~~ as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to ~~this subsection 2.5~~ Section 6.01(a) or (b) would not exceed 4.00:1.00, and any such addition shall be in ~~a minimum~~ an aggregate amount of ~~at least~~ not less than $~~15,000,000 and in integral multiples~~ 5,000,000 or any whole multiple of $1,000,000 in excess thereof. . The Borrower may (bI) ~~Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms~~ incur Incremental Commitments under clause (x), (y) or (z) of the ~~relevant~~ second proviso of the immediately preceding sentence in such order as it may elect in its sole discretion and shall be allowed to classify under which clause such Incremental ~~Commitments. The~~ Commitments are being incurred at the time of such incurrence, without giving Pro Forma Effect to any Incremental Facilities or any increases of the Term Facility (or any portion thereof) in each case permitted to be incurred under such clauses (x) and (y) that is being incurred concurrently with an incurrence under such clause (z) when calculating the amount of Incremental Commitments (or any portion thereof) that may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made incurred pursuant to such ~~Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement.~~ clause (dz) 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 at 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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 time and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.later reclassify

Appears in 1 contract

Samples: First Lien Credit Agreement (TGPX Holdings I LLC)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan credit facilities~~ loans or (B) increases (an “Incremental Term Loan Increase”) to ~~be included in this Agreement~~ an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero) of Indebtedness that~~ 10 Business Days after the date on which such notice is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered ~~a certificate~~ to the Administrative Agent~~, certifying compliance with~~ . The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the ~~financial test set forth in such clause~~ Incremental Commitments; provided that (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ i) no Lender will be required to provide such Incremental ~~Commitment~~ Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than ~~Supplemental Term Loan Commitments) shall be made by creating~~ a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institutionLender, an ~~“Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate~~ affiliate of a Lender ~~hereunder~~or an Approved Fund, shall be reasonably acceptable to ~~the consent of~~ the Administrative Agent (with such ~~consent~~ acceptance by the Administrative Agent to not to be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the ~~consent~~ Incremental Revolving Commitments other than a Lender, an affiliate of ~~any swingline lender~~ a Lender or ~~issuing lender~~an Approved Fund, as shall be reasonably acceptable to each Issuing Lender (with such acceptance by the ~~case may be, that may then be required pursuant~~ Issuing Lenders to ~~subsection 10.6 (such consent~~ not to be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (~~it being understood that any~~ i) no Default or Event of Default shall have occurred and be continuing on such ~~Additional Lender that is an Affiliated Lender~~ Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) the Borrower shall be ~~subject~~ in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to ~~the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if~~ such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related ~~Obligations~~ Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 00 xxxxx xxxxxx, (xxx) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had ~~been obtained by~~ occurred on such ~~Lender by way~~ date of ~~assignment)~~determination. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. For the avoidance of doubt, ~~provided, however, that~~ (i) ~~(A)~~ the Tranche A Term Loans constitute 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 Tranche A Term Loans, (Bii) the ~~Incremental Commitments and 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~~ 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than constitute Incremental Term ~~Loans secured on a junior basis by the Collateral or ranking junior in right of payment~~Loans, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; and (iii) the ~~maturity date and the weighted average life to maturity of such Incremental Commitments~~ Tranche A Term Lenders 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each ~~case only to extend the maturity date~~ case, for all purposes of this Agreement and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerLoan Documents.

Appears in 1 contract

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

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~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 new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the ~~loans in any Tranche~~ 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.6 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness ~~that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ in connection therewith), the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ Maximum Incremental Facilities Amount and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~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). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.6 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 15.0 million and in integral multiples of $~~1,000,000~~ 5.0 million in excess thereof. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”)~~, provided,~~ ; provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to 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) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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 Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O I-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P I-2 (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,~~ Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a ~~Loan under the applicable Tranche, for all intents and purposes of this Agreement~~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 ~~subsection 2.5,~~ Subsection 2.6; provided, however, that (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 Initial Term ~~Loans~~Loans (so long as any such Incremental Commitments (and related Obligations) are subject to any Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 (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 are outstanding, any mandatory prepayment provisions that do not also apply to the ~~applicable~~ Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for ~~such~~ the Initial Term Loans than such Incremental ~~Loans~~Term Loans as contemplated by the proviso appearing in Subsection 4.4(c)) (other 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) below) any Incremental Term Loans ~~constituting Initial Term Loan Refinancing Debt~~ may provide for more favorable amortization payments than the ~~applicable~~ Initial Term Loans); , (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) 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 Maturity Date or the weighted average life to maturity of the Initial Term ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, ~~that~~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 Maturity Date of the Initial Term ~~B-45~~ Loans or the weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ 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 ~~any~~ the Initial Term Loans by more than 50 basis points, then the Applicable Margin for ~~such~~ the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; ~~provided~~ 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 Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under ~~such~~ the Initial 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 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; (C) any amendments to the Applicable Margin on ~~any~~ the Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ 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 ~~such~~ 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 ~~such~~ the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ 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 ~~such~~ the Initial Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ 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 ~~Permitted~~ Obligations” and “Refinancing Indebtedness” and ~~subsection 7.8(b~~Subsection 8.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of ~~such~~ the Initial Term Loans and weighted average life to maturity of ~~such~~ the Initial 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 Commitment, ~~add, or~~ provide for adjustments ~~to,~~ to the definition of “Agent Default,” ”, “Defaulting Lender” protections and appropriate modifications to ~~subsection 2.7~~ 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 (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Nci Building Systems Inc)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(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 new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the ~~loans in any Tranche~~ 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”), (iv) to increase any Incremental Revolving Commitments by requesting new revolving credit commitments to be added to an existing Tranche of Incremental Revolving Credit Commitments (the “Supplemental Revolving Commitments”) and (ivv) 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, the Supplemental Term Loan ~~Commitments and~~ Commitments, the Incremental Revolving Commitments, the Supplemental Revolving Commitments and the “Incremental Commitments”~~), provided that, after~~ ) by an amount not to exceed the ~~FourthSixth Amendment Effective Date,~~ Incremental Amount (~~i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited,~~ at the time ~~the respective~~ of incurrence or establishment of such Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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 ratioCommitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 5,000,000 and in integral multiples of $1,000,000 in excess ~~thereof~~thereof (or such lesser amounts as the Administrative Agent may agree). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 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 (other than any ~~such existing Lender and~~ Disqualified Lender) (any such bank or other financial institution, an “Additional Lender”)~~, provided~~; provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, such Additional Lender shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) ~~and~~ to the ~~consent of any swingline lender or issuing lender, as the case may be, that may then be~~ extent required pursuant to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ Section 10.07 (it being understood that any such Additional Lender that is an ~~Affiliated~~ Affiliate Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 10.07(i), 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 and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Tranche of Incremental Revolving Loans, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O M-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P M-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the ~~Register~~Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Incremental Commitment, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. The Borrower may agree to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a ~~Lender,~~ 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~~ and the ~~applicable Tranche, for all intents and purposes of this Agreement~~Supplemental Revolving Commitment shall be an Incremental Revolving Commitment. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ Borrower, each Additional ~~Lender~~Lender and the Administrative Agent. 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 ~~subsection 2.5~~Section 2.14 (including, without limitation, with respect to any Incremental Commitments to be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Guaranty, the Security Agreement and the Pledge Agreement), provided, however, that (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 Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term ~~Loans~~Loan Intercreditor Agreement or an Other Intercreditor Agreement, including a Junior Priority Intercreditor Agreement, as applicable), (B) the Incremental Commitments and 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 ~~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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)~~; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) in the case of a New Term Facility, the maturity date and the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting~~ Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate ~~margins~~ margins, (subject to Section 2.14(d)(iii)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors applicable to the loans made pursuant to the New Term Facilities or Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Revolving Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans Incurred~~ Incremental Term Loans incurred by the Borrower under any ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities are higher than the applicable interest rate margin for ~~any~~ the Initial Term Loans by more than 50 25 basis points, then the Applicable ~~Margin~~ Rate for ~~such~~ the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term Loans is equal to the applicable interest rate margins for such ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities minus 50 25 basis points; ~~provided further that~~provided, further, that in determining the applicable interest rate margins for the Initial Term Loans and the ~~Incremental~~ New Term ~~Loans~~Facilities, (A) ~~original issue discount (“OID”)~~ 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 ~~such~~ the Initial Term Loans or any ~~Incremental~~ New Term ~~Loan~~ Facilities 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 fees payable in connection with the ~~Incremental~~ New Term ~~Loans~~ Facilities that are not shared with all Additional Lenders providing such ~~Incremental~~ New Term ~~Loans~~ Facilities shall be excluded; (C) any amendments to the Applicable ~~Margin~~ Rate on ~~any~~ the Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ Closing Date but prior to the time of such ~~Incremental~~ New Term ~~Loans~~ Facilities shall also be included in such calculations and (D) if the ~~Incremental~~ New Term ~~Loans~~ Facilities include an interest rate floor greater than the interest rate floor applicable to ~~such~~ 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~~ Rate for ~~such~~ the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ 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~~Rate) applicable to ~~such~~ the Initial Term Loans set forth in the last sentence of the definition of Eurodollar Rate and Base Rate, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may ~~provide~~ (1) provide for the inclusion, as appropriate, of ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ Lenders or of the Lenders of each Tranche hereunder, (2) provide class voting and other class protections for any additional credit facilities, (3) provide for adjustments to the ~~amendment of the definitions~~ definition of “~~Additional Permitted Obligations~~Defaulting Lender” and add “~~Refinancing Indebtedness~~Defaulting Lender” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, protections and (4) in the case of an Incremental Revolving Credit Commitment or Incremental Letter of Credit Commitment, ~~add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and~~ add appropriate modifications to ~~subsection 2.7~~ Section 2.15 to provide for “amend and extend” mechanics for Incremental Revolving Credit Commitments or an Incremental Letter of Credit Commitment (and related Obligations) and appropriate modifications to Section 2.20 to provide to “refinancing facilities” mechanics for Incremental Revolving Credit Commitments and Incremental Letter of Credit Commitments (and related Obligations), in each case under this clause (4) and the preceding clause (3) on terms ~~agreed~~ substantially similar to the equivalent terms in the ABL Facility Agreement as in effect on the date hereof (as determined in good faith 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, the terms and documentation governing the existing Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent and the Borrower.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Tribune Publishing Co)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower ~~shall have the right~~may, at any time ~~and from time~~ prior to ~~time after the Closing Date~~December 31, ~~(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”)~~2008, ~~(ii) to increase the loans in any Tranche~~ by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate notice to the Administrative Agent, ~~certifying compliance with~~ request an increase in the ~~financial test set forth~~ Revolving Credit Facility (each such facility increase being an "INCREMENTAL REVOLVING CREDIT FACILITY") or an increase in the Term B Facility or a new term loan facility (each such ~~clause (together with calculations demonstrating compliance with such ratio). Any loans made~~ facility increase or new term loan facility being an "INCREMENTAL TERM FACILITY") in an aggregate principal amount not to exceed $750,000,000 for all Incremental Facilities, each of which to be effective as of a date that is at least 360 days prior to the scheduled Termination Date then in effect in respect of ~~any~~ (x) the Revolving Credit Facility in the case of an Incremental Revolving Credit Facility and (y) the Term B Facility in the case of an Incremental Term Facility (such date for each such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from Facility, the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”"INCREASE DATE"), as specified in the ~~case may be, which shall be delivered~~ related notice to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5,~~ ; provided, however, that (i) in no event shall any Incremental Facility be in a principal amount of less than $100,000,000 (~~A) the Incremental Commitments will not~~ or such lesser amount as shall 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~~ approved by the ~~same Collateral securing~~ Administrative Agent) nor shall the ~~Term Loans, (B) the~~ aggregate amount of all Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)Facilities exceed $750,000,000; (ii) there shall be no ~~Lender will~~ more than three Incremental Facilities (or such greater number as shall be ~~required to provide any such Incremental Commitment unless it so agrees~~approved by the Administrative Agent); (iii) on the ~~maturity date~~ Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.17 shall be satisfied; (iv) as of the ~~weighted average life~~ last day of the fiscal quarter of the Borrower immediately preceding the Increase Date, after giving pro forma effect to ~~maturity~~ any such Incremental Facility and other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions or repayment of Debt after the beginning of such fiscal quarter but prior to or simultaneous with the borrowing in respect of such Incremental ~~Commitments~~ Facility, the Borrower shall be in pro forma compliance with all financial covenants set forth in Section 5.04; (v) on the Increase Date, after giving pro forma effect to any such Incremental Facility, no Default shall have occurred and be continuing; (vi) each Incremental Facility shall have a maturity date that is no earlier than ~~or shorter than,~~ the scheduled Termination Date in respect of the Term B Facility (but may have nominal amortization prior to such Termination Date so long as the ~~case may be, the~~ Weighted Average Life to Maturity ~~Date or~~ of such Incremental Facility is no shorter than the weighted average life to maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than then-remaining Advances under the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicableB Facility); (ivvii) the interest ~~rate margins applicable to the loans made pursuant to the Incremental Commitments,~~ rates and ~~the~~ amortization schedule applicable to any Incremental ~~Term Loans,~~ Facility shall be determined by the Borrower and the ~~applicable Additional Lenders~~relevant lenders thereunder; ~~provided that~~(viii) any Incremental Term Facility shall be treated like the Term B Advances, and any Incremental Revolving Credit Facility shall be treated like the Revolving Credit Advances, in each case in terms of sharing of prepayments and other appropriate provisions; (ix) all other terms and conditions of each Incremental Facility to the ~~event that~~ extent not consistent with the terms and conditions of the Term Facilities or the Revolving Credit Facility, as the case may be, shall be reasonably satisfactory to the Administrative Agent and, so long as the Lead Arranger or any of its Affiliates shall be a Secured Party (except as permitted by clauses (vi) and (vii) above); and (xi) notwithstanding any other provision of any Loan Document (including, without limitation, Section 9.01), the Loan Documents may be amended by the Administrative Agent and the Borrower, if necessary, to provide for terms applicable ~~interest rate margins for any term loans Incurred~~ to each Incremental Facility consistent with the terms hereof. (b) The Administrative Agent shall promptly notify Lenders selected by the Borrower ~~under any Incremental Term Loan Commitment are higher than~~ in consultation with the ~~applicable interest rate margin for any Term Loans by~~ Administrative Agent and/or one or more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 Term Loans and the Incremental Term Loans, Eligible Assignees (Aeach an "INVITED LENDER") ~~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~~ a request by the Borrower for an Incremental Facility, which notice shall include (i) the proposed amount of such requested Incremental Facility, (ii) the proposed Increase Date and (iii) the date by which the Invited Lenders wishing to ~~the Lenders under such Term Loans or any Incremental Term Loan~~ participate in the ~~initial primary syndication thereof shall be included (with OID being equated~~ Incremental Facility must commit to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the ~~interest rate floor~~ amount of their respective Commitments (the "COMMITMENT DATE"). Each Invited Lender that is willing to participate in the requested Incremental Facility (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 an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Facility, the requested Incremental Facility 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 notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Incremental Facility. (d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Facility 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 ~~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 such Term Loans~~ Incremental Facility shall be so increased by such ~~amount~~amount (or by the 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 Increase Date the following, each dated such date: (vi) certified copies of resolutions of the Board of Directors (or other analogous governing body) of the Borrower approving the applicable Incremental Facility and the corresponding modifications to this Agreement and an opinion of counsel for the Borrower (which may be in-house counsel), addressing the due execution, authorization, delivery and enforceability of the documents evidencing such Incremental ~~Commitment Amendment may provide~~ Facility and the absence of any violation of applicable law, constitutive documents or material contracts binding upon the Borrower, in a form reasonably satisfactory to the Administrative Agent; (1ii) ~~for~~ an assumption agreement from each Assuming Lender, if any, in form and substance reasonably satisfactory to the ~~inclusion, as appropriate, of~~ Borrower and the ~~Additional Lenders in any required vote or action of the Required Lenders, Supermajority Lenders or of the Lenders of~~ Administrative Agent (each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(ban "ASSUMPTION AGREEMENT"), ~~in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of~~ duly executed by such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Assuming Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the ~~Lenders providing such Commitments~~ Borrower; and (~~including any swingline lender or issuing lender); and (vi~~iii) confirmation from each Increasing Lender of the ~~other terms and documentation~~ increase in ~~respect thereof, to~~ the ~~extent not consistent with this Agreement as~~ amount of its Commitment in ~~effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably~~ 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 (including, without limitation, each Assuming Lender) and the Borrower, on or before 11:00 A.M. (New York City time), by telecopier, of the occurrence of the applicable Incremental Facility to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date.

Appears in 1 contract

Samples: Credit Agreement (Td Ameritrade Holding Corp)

Incremental Facilities. (a) So long as no Event of Default ~~under subsection 8(a) or (f)~~ exists or would arise ~~therefrom~~therefrom (or, in the case of an incurrence of Incremental Loans in connection with a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for 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 commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the ~~loans in any Tranche~~ 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 each a “New Revolving Facility”), ) and (iv) to ~~request~~ increase the existing Revolving Credit Facility by requesting new ~~letter of~~ revolving credit ~~facility~~ commitments ~~under one or more new letter of credit facilities~~ to be ~~included in this Agreement~~ added to an existing Tranche of Revolving Credit Loans (the “Supplemental Revolving Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”~~), provided that, after~~ ) by an amount not to exceed the ~~FourthSixth Amendment Effective Date,~~ Incremental Amount (~~i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited,~~ at the time ~~the respective~~ of incurrence or establishment of such Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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 ratioCommitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 5,000,000 and in integral multiples of $1,000,000 in excess ~~thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments~~ thereof (or ~~any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any~~ such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of lesser amounts as the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case~~ may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignmentagree). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (Chicagoland Television News, LLC)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~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 new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 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 ~~subsection 7.1(b)(xiv)(i),~~ 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 ~~ratio)~~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 and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be made in Dollars, Euro, Sterling and such other currencies as mutually agreed by the Parent Borrower and the lenders thereunder and shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (in the case of Incremental Commitments denominated in Dollars) or in a minimum aggregate amount of at least €10,000,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each case, 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 2.5~~ 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of any Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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 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 Representative and each increasing Lender substantially in the form attached hereto as Exhibit O I-1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 (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 Incremental Lender shall be a ~~Lender,~~ 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~~or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~for all intents and purposes of this Agreement~~as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ Borrowers and each ~~Additional~~ applicable Incremental 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 Representative and the Administrative Agent, to effect the provisions of this ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (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~~Borrower Representative’s option) junior basis by the same Collateral securing the ~~Term Loans~~First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the ~~Borrower~~Borrower Representative’s option) junior to the ~~Term Loans~~ First 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 ~~Term Loans~~ First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 ~~applicable~~ 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vii)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (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 Initial Revolving Maturity Date; (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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, ~~that~~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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as applicable); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower Representative and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any term loans Incurred by the ~~Borrower~~ Borrowers under any Incremental Term Loan ~~Commitment~~ Commitment, made on or prior to the 18-month anniversary of the Closing Date, are higher than the applicable interest rate margin for ~~any~~ the Initial Dollar Term Loans (in the case of term loans denominated Dollars) or the Initial Euro Term Loans (in the case of term loans denominated in Euro) by more than 50 basis points, then the Applicable Margin for ~~such~~ the applicable Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable Initial 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~~ Borrowers to the Lenders under such 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 such Initial Term Loans are issued in a manner such that all such 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 ~~any~~ the applicable Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ 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 ~~such~~ the applicable 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 such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such amount; (vvi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.may

Appears in 1 contract

Samples: First Lien Credit Agreement (Mauser Group B.V.)

Appears in 1 contract

Samples: Credit Agreement (Primedia Inc)

Incremental Facilities. xxviii) (a) ~~So long as no Event~~ Upon notice to the Administrative Agent (which shall promptly notify the Lenders) and subject to the terms and conditions of ~~Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right~~this Section 2.22, at any time ~~and from time to time~~ after the ~~Closing~~ Effective Date, the Borrower may solicit the existing Lenders or prospective lenders determined by the Borrower to provide (ix) ~~to request new term loan commitments under one or more new term loan credit facilities to be included~~ increases in ~~this Agreement (~~the ~~“Incremental Term Loan Commitments”), (ii) to increase the loans in any Tranche by requesting new term loan~~ commitments to ~~be added to an existing Tranche of Loans~~ the Revolving Credit Facility (~~the “Supplemental Term Loan Commitments”)~~such increases, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the~~ “Incremental Revolving Commitments”~~), and~~ ) and/or (ivy) ~~to request new letter~~ incremental commitments consisting of ~~credit facility commitments under~~ one or more new ~~letter~~ tranches of ~~credit facilities to be included in this Agreement~~ term loans (each, an “Incremental Term Facility” and together with ~~the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the~~ any Incremental Revolving Commitments, the “Incremental ~~Commitments~~Facilities”)) in an aggregate amount not to exceed $1,000,000,000, ~~provided that, after~~ on terms agreed by the ~~FourthSixth Amendment Effective Date, (i~~Borrower and the lender(s) ~~the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time~~ providing the respective Incremental ~~Commitment becomes effective, to~~ Facility (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate subject to the ~~Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~following clauses of this Section 2.22). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request~~ Any such Incremental Facility shall be unsecured. Additionally, (i) in the case of any Incremental Revolving Commitments, such Incremental Revolving Commitments shall be subject to the same terms and conditions (including pricing, interest rate margins, rate floors, fees and maturity) and pursuant to the same documentation as the Revolving Credit Facility, (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, (B) the amortization payments applicable to any 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 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 ~~this subsection 2.5~~ Section 2.22(a) shall set forth the requested amount and proposed terms of the ~~relevant~~ Incremental ~~Commitments~~Facilities, which proposed terms shall not be inconsistent with the requirements of Section 2.22(b). ~~The~~ 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 ~~Commitments~~ Facilities (or any portion thereof) may be ~~made~~ provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such ~~existing Lender and any such~~ bank or other financial institution, an “~~Additional~~ Incremental Lender”), ~~provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ provided that the Administrative Agent (~~such~~ 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 to be unreasonably withheld or delayed) ~~and the consent of any swingline lender~~ to such Lender’s or ~~issuing lender~~Incremental Lender’s, as the case may be, ~~that may then~~ providing such Incremental Facilities if such consent would be required ~~pursuant~~ under Section 9.04 for an assignment of Loans to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or ~~by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)~~Incremental Lender, as the case may be~~, which~~ . Any Lender not responding within such time period shall be ~~delivered~~ deemed to ~~the~~ have declined to provide any portion of such Incremental Facility. The Administrative Agent ~~for recording in~~ shall notify the ~~Register. Upon effectiveness~~ Borrower and each Lender of the ~~Lender Joinder Agreement~~ Lenders’ responses to each ~~Additional Lender shall be a Lender, and the term loan~~ request made ~~pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement~~hereunder. (de) Incremental Facilities shall become effective, and commitments thereunder shall become Commitments (~~other than Supplemental Term Loan Commitments~~and in the case of any Incremental Revolving Commitment in respect of the Revolving Credit Facility to be provided by an existing Revolving Credit Lender, shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) ~~shall become commitments~~ under this Agreement pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Incremental Facility, if any, each Incremental Lender, if any, and ~~each Additional Lender~~the Administrative Agent. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5~~Section 2.22. (f) If any Incremental Facilities are added in accordance with this Section 2.22, ~~provided, however, that (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~~ , in consultation with the ~~same Collateral securing~~ Administrative Agent, shall determine the ~~Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder~~ effective date (the “Incremental ~~Loans~~Commitments Effective Date”) and the final allocation of such Incremental Facilities. The Administrative Agent shall ~~rank pari passu in right~~ promptly notify the Lenders of ~~payment with or~~ the final allocation of such Incremental Facilities and the Incremental Commitments Effective Date. (~~at the Borrower’s option~~g) ~~junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I)~~ The effectiveness of any Incremental ~~Commitment or any Incremental Loans~~ Facility Amendment shall, unless otherwise agreed 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the ~~Collateral or ranking junior in right of payment~~Administrative Agent, ~~which shall~~ each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to ~~junior prepayment provisions~~the satisfaction on the Incremental Commitments Effective Date of each of the following conditions: (i) the Administrative Agent shall have received on ~~a pro rata basis~~ 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; (y) customary legal opinions; and (z) 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 exists or ~~otherwise provide for more favorable prepayment treatment for~~ would exist after giving effect thereto and all representations and warranties of the Borrower under this Agreement shall be true and correct in all material respects immediately before and after giving effect thereto (except to the extent that such ~~Term Loans than~~ 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 ~~Incremental Loans~~earlier date), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent ~~necessary~~ the proceeds of any Incremental Facility are being used to finance an acquisition or any other permitted investment, if so that the applicable interest rate margin for such 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 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 agreed by the Borrower to the Lenders under such 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 fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental ~~Term Loans~~ Facility, (x) the only representations and warranties the making and accuracy of which will be a 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 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. (h) On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) shall ~~be excluded;~~ become a Lender for all purposes of this Agreement and the other Loan Documents and (Cii) ~~any amendments~~ shall have a commitment under such Incremental Facility which shall become a Commitment hereunder. (i) Upon each establishment of Incremental Revolving Commitments pursuant to ~~the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but~~ this Section 2.22, (i) each Revolving Lender immediately prior to the ~~time~~ effectiveness of such Incremental ~~Term Loans shall also~~ Revolving Commitments will automatically and without further act be ~~included in such calculations and (D)~~ deemed to have assigned to each existing Lender, if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunderany, and ~~in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such~~ each Incremental ~~Commitment Amendment may provide (1) for the inclusion~~Lender, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b)if any, in each case ~~only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date~~ providing a portion of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (~~and related Obligations~~each an “Incremental Revolving Commitments Increase Lender”), and each such Incremental Revolving Commitments Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Xxxxxx’s participation interests hereunder in outstanding Letters of Credit such that, after giving effect to the effectiveness of such Incremental Revolving Commitments and each ~~case~~ such deemed assignment and assumption of participation interests, the 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, on ~~terms agreed by~~ the ~~Borrower~~date of effectiveness of such Incremental Revolving Commitments, there are any Revolving Loans outstanding, the Administrative Agent and the ~~Lenders providing such Commitments~~ Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender (including ~~any swingline lender or issuing lender); and (vi~~each Incremental Revolving Commitments Increase Lender) having a pro-rata share of the ~~other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to~~ outstanding Revolving Loans based on each such Revolving Lender’s Applicable Revolving Percentage immediately after giving effect to such Incremental Revolving Commitments. The Administrative Agent and the ~~Incremental Commitment Amendment~~Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall ~~otherwise~~ not apply to any transaction that may be ~~reasonably satisfactory~~ effected pursuant to the ~~Borrower~~immediately preceding sentence. (j) The provisions of this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Huntington Ingalls Industries, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower ~~shall have the right~~may, at any time ~~and from time to time~~ other than during the Covenant Relief Period, on one or more occasions on or after the ~~Closing Date,~~ Funding Date pursuant to an Incremental Amendment (i) ~~to request new term loan commitments under~~ add one or more new Classes of term ~~loan credit~~ facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to ~~be included in this Agreement~~ provide such Term Loans (~~the~~ any such commitments, “Incremental Term ~~Loan~~ Commitments” and any such new Class or increase, an “Incremental Term Facility” and any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”), ) and/or (ii) to increase the ~~loans in~~ aggregate amount of the Revolving Commitments (an “Incremental Revolving Facility” and, together with any ~~Tranche by requesting new term loan~~ Incremental Term Facility, “Incremental Facilities”; the commitments ~~to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”)~~thereunder, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (~~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 Incremental Available Amount; Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM 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 its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan, (iv) ~~to request new letter~~ except as otherwise permitted herein the terms of ~~credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with the~~ any Incremental Term ~~Loan Commitments~~Facility, ~~Supplemental~~ if not substantially consistent with those applicable to any then-existing Term ~~Loan Commitments~~ Loans, must be (x) reasonably acceptable to the Administrative Agent or (y) only applicable to the period after the Latest Maturity Date, (v) 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 Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof), (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, the pricing (including interest rate and fees) of any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility, (x) (A) each Incremental Term Facility or Incremental Revolving ~~Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date,~~ Facility shall rank (i) on a pari passu basis with or on a junior basis to the ~~aggregate principal amount~~ Term Loans and Revolving Loans in right of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million payment and (ii) ~~if any portion of an Incremental Commitment is to be incurred in reliance~~ on ~~subsection 7.1(b)(xiv)(i), the Borrower shall have delivered~~ a ~~certificate to the Administrative Agent, certifying compliance~~ pari passu basis with the ~~financial test~~ Term Loans and Revolving Loans in right of security or shall be unsecured and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral, (xi) (A) subject to Section 1.12, no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility, and (B) the representations and warranties of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in this Agreement and the other Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Loan Documents shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, 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 date; provided that, to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; (xii) any Incremental Term Facility shall participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) 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 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 (~~together with calculations demonstrating compliance with~~ 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 ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereofInterest Period. (b) ~~Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The~~ Incremental Commitments ~~(or any portion thereof)~~ may be ~~made~~ provided by any existing ~~Lender~~ Lender, or by any other ~~bank or financial institution~~ eligible assignee (any such ~~existing Lender and any such bank or~~ other ~~financial institution,~~ lender being called an “~~Additional~~ Incremental Lender”); provided that, ~~provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ the Administrative Agent (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) ~~and~~ to the relevant Incremental Lender’s provision of Incremental Commitments if such consent ~~of any swingline lender or issuing lender, as the case may be, that may then~~ would be required ~~pursuant~~ under Section 9.04 for an assignment of Loans to ~~subsection 10.6 (~~such ~~consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h)~~Incremental Lender, mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment). (c) ~~Supplemental Term Loan Commitments~~ Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall ~~become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower~~ execute and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered deliver to the Administrative Agent ~~for recording in~~ and the ~~Register~~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. ~~Upon effectiveness~~ On the effective date of ~~the Lender Joinder Agreement~~ such Incremental Commitment, each ~~Additional~~ Incremental Lender shall be become a ~~Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche,~~ Lender for all ~~intents and~~ purposes of in connection with this Agreement. (d) As conditions precedent to the effectiveness of any Incremental ~~Commitments~~ Facility or the making of any Incremental Loans, (~~other than Supplemental Term Loan Commitments~~i) upon its request, the Administrative Agent shall ~~become commitments under this Agreement pursuant~~ be entitled to ~~an amendment (an “Incremental Commitment Amendment”) to this Agreement and~~receive customary written opinions of counsel, as ~~appropriate~~well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) 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 the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the ~~other Loan Documents, executed~~ 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 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 governing body of the Borrower and (B) to the ~~Administrative Agent~~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 ~~effect the provisions of~~ this ~~subsection 2.5, provided, however, that~~ Section 2.20: (i) ~~(A) the~~ each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental ~~Commitments~~ Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will ~~not~~ automatically and without further act be ~~guaranteed by any Subsidiary~~ deemed to have assumed a portion of such Revolving Xxxxxx’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the ~~Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or~~ Revolving Lenders’ (~~at the Borrower’s option~~including each Incremental Revolving Facility Lender) ~~junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu~~ participations hereunder in ~~right~~ Letters of payment with or (at the Borrower’s option) junior to the 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Credit shall be ~~subject to junior prepayment provisions)~~ held on a pro rata basis on the basis of their respective Revolving Commitments (~~or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that~~ after giving effect to any ~~Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than~~ increase in the ~~applicable Term Loans~~Revolving Commitment pursuant to this Section 2.20); and (ii) ~~no Lender will be required~~ the existing Revolving Lenders shall assign Revolving Loans to ~~provide any~~ 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 ~~Commitment unless it so agrees; (iii~~Revolving Facility) ~~the maturity date and the weighted average life to maturity of~~ shall purchase such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Revolving Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased each case to the extent necessary so that all of the ~~applicable interest rate margin for such Term~~ Revolving Lenders participate in each outstanding Borrowing of Revolving Loans ~~is equal~~ pro rata on the basis of their respective Revolving Commitments (after giving effect 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the ~~interest rate floor for such Term Loans would cause an increase~~ 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 ~~the interest rate then in effect thereunder, and in such case the interest rate floor (but~~ this Agreement shall not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans apply to the ~~extended maturity~~ transactions effected pursuant to this clause (ii). (f) On the date ~~and the weighted average life to maturity~~ of ~~such Incremental Term Loans, as applicable, and (4) in the case~~ effectiveness of an any Incremental Revolving ~~Commitment, add, or provide for adjustments to~~Facility, the ~~definition~~ maximum amount of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations)LC Exposure permitted hereunder shall increase by an amount, ~~in each case on terms~~ if any, agreed upon by the 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- Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM 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 availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section 2.20 shall supersede any provision in Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be 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 the consent of any other Lender (other than the Incremental Lenders providing such ~~Commitments (including any swingline lender or issuing lender~~Incremental Facility); , and ~~(vi)~~ furnished to 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 Borrowerparties hereto.

Appears in 1 contract

Samples: Credit Agreement (Waldencast PLC)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~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 new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 (ivv) 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 Incremental Revolving Commitments, the “Incremental Commitments”), ; provided that~~, after the FourthSixth Amendment Effective Date~~, (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and~~ 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 ~~subsection 7.1(b)(xiv)(i)~~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)~~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 and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~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 2.5~~ 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to 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 or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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 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 O I-1 (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 (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 Incremental Lender shall be a ~~Lender,~~ 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~~or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~for all intents and purposes of this Agreement~~as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving 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~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (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 ~~Term Loans~~First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 ~~Term Loans~~ First 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 ~~Term Loans~~ First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 ~~applicable~~ 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date ~~and the weighted average life to maturity~~ of ~~such~~ any Incremental ~~Commitments~~ Revolving Commitment shall be no earlier ~~than or shorter~~ than, as and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the ~~case may be, the~~ Initial Revolving Maturity Date or the weighted average life to maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable)Date; (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.Loan Commitments

Appears in 1 contract

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

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i~~this Agreement in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of 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~~test). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan ~~under~~ Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term ~~Loans~~Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and 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 Term ~~Loans~~ Loan 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~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the Term ~~Loans~~ Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ from the Net Available 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 ~~applicable~~ extent the Net Available 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of ~~such~~ any 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith, which determination shall be conclusive), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as ~~applicable~~applicable or, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the Earlier Maturity Date Basket); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans~~ syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the InitialTranche B Term Loan Maturity Date, Incurred by the Borrower ~~under~~ pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the Closing DateFirst Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any ~~Incremental Term Loan Commitment~~ acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for ~~any~~ the InitialTranche B Term Loans by more than 50 75 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the applicable InitialTranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans~~ Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 75 basis ~~points~~points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable InitialTranche B 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 such InitialTranche B Term Loans or any Incremental Term ~~Loan~~ Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such InitialTranche B Term Loans are issued in a manner such that all such InitialTranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of InitialTranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of InitialTranche B Term Loans shall be determined on a weighted average basis); (B) any ~~arrangement,~~ arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are ~~not~~ not(other than, in the case of syndicated Incremental Term Loans, and only if such fees are shared with all Additional Incremental Lenders providing such syndicated Incremental Term ~~Loans shall~~ Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on ~~any~~ the applicable InitialTranche B Term Loans that became effective subsequent to the ~~FifthSixth~~ ClosingFirst Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such ~~calculations and~~ calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ the applicable InitialTranche 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 such InitialTranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such InitialTranche 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 such InitialTranche B Term Loans shall be increased by such ~~amount; (v) such Incremental Commitment Amendment may provide (1) for~~ amount to the ~~inclusion, as appropriate, of~~ extent necessary to adjust the ~~Additional Lenders in any required vote or action of~~ applicable Existing Interest Rate to be equal to the ~~Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder~~applicable Adjusted Interest Rate, (2E) ~~class voting and other class protections for any additional credit facilities, (3) for~~ if the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Incremental Term Loans ~~and weighted average life~~ include an interest rate floor lower than the interest rate floor applicable to ~~maturity~~ the applicable Tranche of ~~such~~ InitialTranche 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, add,~~ or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including do not include any ~~swingline lender or issuing lender); and (vi) the other terms and documentation in respect thereof~~interest rate floor, to the extent ~~not consistent with this Agreement as~~ a reduction in the interest rate floor for such InitialTranche B Term Loans would cause a reduction in the interest rate then in effect ~~prior to giving effect~~ thereunder, an amount equal to the difference between the interest rate floor applicable to the InitialTranche B Term Loans and the interest rate floor applicable to such Incremental ~~Commitment Amendment~~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 InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, shall ~~otherwise~~ reduce the applicable interest rate margin of the applicable Incremental Term Loans for purposes of determining whether an increase in the Existing Interest Rate shall be ~~reasonably satisfactory to~~ required and (F) if the ~~Borrower.~~applicable Tranche of InitialTranche B

Appears in 1 contract

Samples: Credit Agreement (Core & Main, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower ~~shall have the right~~may, at any time ~~and~~ or from time to time after the Closing Date, by written notice delivered to the Administrative Agent no later than 10 days prior to the anticipated Incremental Facility Closing Date (or such shorter period as may be agreed by the Administrative Agent in its discretion) (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) ~~to request new term loan commitments under~~ one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the “Incremental Term ~~Loan Commitments~~Loans”), (ii) ~~to increase~~ one or more increases in the ~~loans in any Tranche by requesting new term loan~~ amount of the Revolving Credit Commitments (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional tranches of revolving credit commitments ~~to be added to an existing Tranche of Loans~~ (the “~~Supplemental Term Loan~~ Additional/Replacement Revolving Credit 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), ; provided ~~that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited,~~ that both at the time of any such request and after giving effect to the ~~respective~~ effectiveness of any Incremental Agreement referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment ~~becomes effective~~Increase or Additional/Replacement Revolving Credit Commitments is made or effected (and after giving effect thereto), no Default or Event of Default shall exist; provided, further, that after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (~~A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted~~ and after giving effect to any investment to be ~~Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred~~ consummated in ~~reliance on subsection 7.1(b)(xiv)(i~~connection therewith), the Borrower and the Restricted Subsidiaries shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in pro forma compliance with the ~~financial test set forth~~ requirements of Sections 10.9 and 10.10 computed as of the last day of the most recent Test Period, in ~~such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment ~~(other than Supplemental Term Loan~~ Increase or Additional/Replacement Revolving Credit Commitments~~) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount~~ , as applicable, had been outstanding on the last day of ~~at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof~~such Test Period for testing compliance therewith. (b) Each ~~request~~ tranche of Incremental Term Loans, each Incremental Revolving Credit Commitment Increase and each tranche of Additional/Replacement Revolving Credit Commitments 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 below in this Section 2.14(b)) and the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed $150,000,000 (the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans to make the prepayments as required pursuant to Section 5.2(a)(i), (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit to the extent that the existing Revolving Credit Commitments shall be reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided, (iii) in no event shall there be more than three Classes of revolving credit commitments outstanding at any one time and (iv) in no event shall there be more than six Classes of Term Loans outstanding at any one time. (A) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Tranche D Term Loans, (ii) shall not mature earlier than the Tranche D Term Loan Maturity Date, (iii) shall have all-in pricing (including, without limitation, margins, fees, funding discounts, and premiums) and, subject to clause (ii) above, a maturity date and amortization schedules determined by the Borrower and the lenders thereof, (iv) shall have voluntary and mandatory prepayments subject to the provisions of Section 5.1 and 5.2 and (v) shall otherwise have terms and conditions substantially similar to those of the Tranche D Term Loans unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Tranche D Term Loans. (B) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility. (C) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have all-in pricing (including, without limitation, margins, fees, premiums and funding discounts) determined by the Borrower and the lenders of such commitments; (iv) shall contain procedures that require Additional/Replacement Revolving Credit Loans thereunder to be borrowed and repaid (other than in connection with a permanent repayment and termination of commitments) on a pro rata basis with any borrowings and repayments of Revolving Credit Loans under the Revolving Credit Commitments (which procedures may be implemented through the applicable Incremental Agreement and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Facility), (v) shall have voluntary and mandatory reductions of commitment rights that are subject to the provisions of Sections 4.2 and 5.2(e)(ii), (vi) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (vii) shall otherwise have terms and conditions substantially similar to those of the Revolving Credit Facility unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Revolving Credit Commitments. (d) Each notice from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. ~~The~~ Incremental ~~Commitments (or any portion thereof)~~ Term Loans may be ~~made~~ made, and Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld) by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that (i) each existing Lender may elect or decline, in its sole discretion, to make a portion of any Incremental Term Loan, (ii) each existing Lender with a Revolving Credit Commitment may elect or decline, in its sole discretion, to provide a portion of any Incremental Revolving Credit Commitment Increase or any Additional/Replacement Revolving Credit Commitment and (iii) the Borrower shall have simultaneously offered the existing Lenders the opportunity to provide any such Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments) or by any Additional ~~Lender~~ Lender; provided that is 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 Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, if such consent would be required under Section 13.6(b) for an ~~Affiliated Lender shall be subject to the provisions~~ assignment of ~~subsection 10.6(h)~~Loans or Commitments, ~~mutatis mutandis~~as applicable, to ~~the same extent as if such Incremental Commitments and related Obligations had been obtained by~~ such Lender ~~by way of assignment)~~or Additional Lender. (ce) ~~Supplemental~~ Commitments in respect of Incremental Term ~~Loan~~ Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become ~~commitments under this Agreement pursuant to a supplement specifying~~ Commitments (or in the ~~Tranche~~ case of an Incremental Revolving Credit Commitment Increase to be ~~increased, executed~~ provided by ~~the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not~~ an existing Lender ~~substantially~~ with a Revolving Credit Commitment, an increase in the form attached hereto as Exhibit P (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 such Lender~~, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the~~ ’s applicable ~~Tranche, for all intents and purposes of this Agreement. (d~~Revolving Credit Commitment) ~~Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments~~ under this Agreement pursuant to an amendment (an “Incremental ~~Commitment Amendment~~Agreement”) to this Agreement and, as appropriate, the other ~~Loan~~ Credit Documents, executed by Holdings, the ~~Borrower and~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An The Incremental ~~Commitment Amendment~~ Agreement may, subject to Section 2.14(c), without the consent of any other Lender, effect such amendments to ~~any Loan~~ this Agreement and the other Credit Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5~~Section. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 7 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Agreement), the delivery to the Administrative Agent of legal opinions of counsel reasonably requested by the Administrative Agent in connection with any such transaction and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided, however, that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof. (i) Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit 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 Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) ~~the Incremental Commitments will not be guaranteed by any Subsidiary~~ participations hereunder in Letters of ~~the Borrower other than the Subsidiary Guarantors,~~ Credit and ~~will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans,~~ (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the ~~Incremental~~ percentage of the aggregate Revolving Credit Commitments ~~and~~ of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any ~~incremental loans drawn thereunder (the “Incremental Loans”)~~ Revolving Credit Loans outstanding, such Revolving Credit Loans shall ~~rank pari passu in right of payment with~~ on or ~~(at the Borrower’s option) junior~~ prior to the 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity effectiveness of such Incremental ~~Commitments~~ Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be ~~no earlier than or shorter than, as~~ accompanied by accrued interest on the ~~case may be, the Maturity Date or the weighted average life to maturity of the Term B-45~~ Revolving Credit Loans ~~(other than (a)~~ being prepaid and any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to costs incurred by any ~~Incremental Term Loans, shall be determined by the Borrower and the applicable Additional Lenders; provided that,~~ Lender 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (accordance with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the 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 shall not apply to the transactions effected pursuant to the immediately preceding sentence. (ii) Upon each provision of Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), each Lender with a Revolving Credit Commitment immediately prior to the providing of such Additional/Replacement Revolving Loan Commitments ~~(including any swingline lender or issuing lender);~~ will automatically and ~~(vi) the other terms and documentation~~ without further act be deemed to have assigned to each Lender providing a portion of such Additional/Replacement Revolving Credit Commitment in respect ~~thereof~~of such provision, and each such Lender will automatically and without further act be deemed to ~~the extent not consistent with this Agreement as~~ have assumed, a portion of such Revolving Credit Lender’s participations hereunder in ~~effect prior to~~ outstanding Letters of Credit and Swingline Loans such that, after giving effect to such deemed assignment and assumption of participations, the ~~Incremental~~ percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment ~~Amendment~~and each Lender with an Additional/Replacement Revolving Credit Commitment will equal the percentage of the aggregate Revolving Credit Commitments and aggregate Additional/Replacement Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment, ~~shall otherwise be reasonably satisfactory~~ as applicable. If, on the date of the providing of such Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall, on or prior to the ~~Borrower~~effectiveness of such Additional/Replacement Revolving Credit Commitments, be prepaid from the proceeds of Additional/Replacement Revolving Credit Loans made hereunder (reflecting such Additional/Replacement Revolving Credit Commitments), which prepayment shall be accompanied by accrued and unpaid 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 shall not apply to the transactions effected pursuant to the immediately preceding sentence.” (dd) A new Section 2.15 of the Credit Agreement is hereby added as follows:

Appears in 1 contract

Samples: Credit Agreement (LPL Investment Holdings Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Term Loan Maturity Date (with respect to Term Loans) and the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ (x) the establishment of (x) one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~” and,; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $400,000,000785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero~~10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) ~~of Indebtedness that is permitted~~ no Lender will be required to ~~be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at~~ provide such ~~time plus (B) $250 million~~ Incremental Commitment and (ii) if any entity providing all or a portion of the Incremental Commitments other than a Lender, an ~~Incremental Commitment is to~~ affiliate of a Lender or an Approved Fund, shall be ~~incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate~~ reasonably acceptable to the Administrative ~~Agent, certifying compliance with the financial test set forth in such clause~~ Agent (~~together with calculations demonstrating compliance~~ with such ~~ratio~~acceptance by the Administrative Agent to not be unreasonably withheld or delayed). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request from~~ In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) except for any Incremental Loan Commitment in connection with the DTA Acquisition or the Avis Europe Acquisition, the Borrower ~~pursuant to this subsection 2.5~~ shall ~~set forth the requested amount and proposed terms~~ be in compliance with Section 7.1 as of the ~~relevant Incremental Commitments. The~~ most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof), (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any ~~portion thereof~~Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch Revolving Commitments, (vi) except for any Incremental Tranche A Term Loans, if the final maturity date of suchany Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans), which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans, (y) the (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, (y) the OID or upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans) and (z) 00 xxxxx xxxxxx, (xxx) if the final maturity date of suchany Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be ~~made~~ increased by ~~any existing Lender~~ an additional 200 basis points in the form of an additional OID or ~~by any other bank or financial institution~~ upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~any such existing Lender and any such bank or other financial institution, an “Additional Lender”~~vii), ~~provided~~and (viii) the Increment Revolving Commitments, ~~if such Additional Lender is not already~~ the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a ~~Lender hereunder or an Affiliate of a Lender hereunder,~~ form reasonably acceptable to ~~the consent of~~ the Administrative Agent (~~such consent not~~ each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be ~~unreasonably withheld or delayed) and~~ bound to the ~~consent~~ terms of ~~any swingline lender or issuing lender,~~ this Agreement as ~~the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is~~ a Lender. Any Incremental Term Loans made on an ~~Affiliated Lender~~ Increased Amount Date shall be ~~subject to~~ designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of ~~subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments~~ clauses (vi) and ~~related Obligations had been obtained by such Lender by way~~ (vii) above shall be determined separately for each tranche of ~~assignment)~~Term Loans. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ax) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (by) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (cz) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. Notwithstanding anything in this Agreement to the contrary, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior references to the Term Loans ~~and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans~~ in this Section 2.23 shall be deemed to ~~be secured by any Collateral or other assets of any Loan Party that do not also secure~~ include the Replacement Term Loans and (IIii) ~~so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply~~ the references to the ~~applicable Term~~ Revolving Commitments or the Revolving Loans ~~(other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ in ~~right of payment, which~~ this Section 2.23 shall be ~~subject~~ deemed to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than include the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Extended Revolving 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Extended Revolving Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

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

Incremental Facilities. (a) ~~So long as no Event~~ The Borrower may (A) prior to the Revolving Credit Termination Date of ~~Default under subsection 8(a)~~ any Class, increase the aggregate outstanding amount of the existing Revolving Credit Commitments of such Class and/or establish one or more additional Class or Classes of revolving credit commitments (~~f) exists~~ any such increase or ~~would arise therefrom~~new revolving credit commitments, the ~~Borrower shall have~~ “New Revolving Credit Commitments” and the ~~right~~revolving loans made thereunder, at the “New Revolving Loans”) and/or (B) increase the aggregate outstanding principal amount of the Term Loans of any ~~time and from time to time after the Closing Date, (i) to request~~ Class and/or establish one or more Classes of new term loan commitments ~~under one~~ (any such increase or ~~more~~ new term loan ~~credit facilities to be included in this Agreement (~~commitment, the “~~Incremental~~ New Term Loan Commitments” and the term loans made thereunder, the “New Term Loans”), in each case by delivering a Commitment Amount Increase Notice (iia “Commitment Amount Increase Notice”) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit ~~O (the “Increase Supplement”)~~ H or ~~by each Additional Lender that is not an existing Lender substantially~~ in ~~the~~ such other form ~~attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered~~ reasonably acceptable to the Administrative Agent ~~for recording~~ at least three (3) Business Days prior to the stated effective date, unless the Administrative Agent shall have determined in its sole discretion to accept such Commitment Amount Increase Notice on such effective date (the “Increased Amount Date”) such increase or new commitment (the “Commitment Amount Increase”) identifying (i) any existing Lenders and/or any new lender(s) (each, a “New Revolving Lender” or “New Term Lender,” as applicable), subject, in the ~~Register. Upon effectiveness~~ case of New Revolving Lenders and New Term Lenders, to the reasonable consent of the Administrative Agent (and in the case of any New Revolving Lenders, the Swing Line Lender ~~Joinder Agreement each Additional Lender~~ and L/C Issuer) to the extent such consent would be required under Section 13.12 in respect of an assignment hereunder and (ii) the amount of such Lender’s New Revolving Credit Commitment or New Term Loan Commitments and in the case of New Term Loans that are part of an existing Class of Term Loans, identifying such existing Class of Term Loans; provided, however, that (i) any Commitment Amount Increase shall be in an amount not less than $5,000,000 (or such lesser amount which shall be approved by the Administrative Agent or represents all remaining availability under the limit set forth in this clause (i)) and in the aggregate for all such increases not greater than (A) $140,000,000 (less the aggregate amount outstanding of Incremental Equivalent Debt incurred pursuant to clause (i)(x) of the proviso to Section 8.7(o)), plus (B) in the case of any Commitment Amount Increase that effectively extends the Revolving Credit Termination Date or any maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the prepayment to be made with respect to any Term Loans and/or the permanent commitment reduction to be made with respect to the Revolving Credit Facility, in each case to be replaced with such Commitment Amount Increase, plus (C) additional amounts so long as, after giving effect to such additional amounts, the Secured Leverage Ratio does not exceed 3.60:1.00, calculated on a ~~Lender~~Pro Forma Basis (which (i) if in connection with an Acquisition, as of the last day of the most recent fiscal quarter for which financial statements are available prior to the date of the definitive documentation for such Acquisition (or, if earlier, the applicable Increased Amount Date), (ii) shall assume that all debt incurred pursuant to this Section 1.16 and clause (i)(y) of the proviso to Section 8.7(o) is secured on a pari passu basis with the Credit Facilities and, if consisting of revolving commitments, is fully drawn, and (iii) shall exclude from the ~~term loan made pursuant~~ “net debt” portion of such Pro Forma calculation the cash proceeds from the borrowing of the Commitment Amount Increase) (with the Borrower to select, on the date such Commitment Amount Increase is obtained, utilization under clauses (A), (B) or (C) in its sole discretion), (ii) except as otherwise agreed by the lenders providing such Commitment Amount Increase as New Term Loans in connection with an Acquisition permitted hereunder, (x) no Default or Event of Default shall have occurred and be continuing on the Increased Amount Date (both prior to and after giving effect to such ~~Supplemental Term~~ Commitment Amount Increase) and (y) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (or in all respects if otherwise qualified by “material” or “material adverse effect”) as of said time, except to the extent the same expressly relate to an earlier date (in which case, such representation and warranty shall be true and correct in all material respects as of such earlier date), and (iii) with respect to any Commitment Amount Increase in respect of New Revolving Credit Commitments, the material terms (other than with respect to interest, discounts, maturity and fees) shall, subject to clause (B) below, be substantially identical to those applicable to the existing Revolving Credit Commitments (or otherwise reasonably acceptable to the Administrative Agent); provided, that: (A) the applicable maturity date of such New Revolving Credit Commitment shall be no earlier than the Revolving Credit Termination Date of the then outstanding Revolving Loans; and (B) any other material terms (other than with respect to margin, discounts, pricing, maturity or fees) with respect to any New Revolving Credit Commitments that are not substantially identical to the existing Revolving Credit Commitments shall be applicable only after the Revolving Credit Termination Date applicable to the existing Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent. (iv) New Term Loans borrowed hereunder may be part of an existing Class of Term Loans, in which case such New Term Loans shall have all of the same terms and conditions as such existing Term Loans, or may constitute a ~~Loan under~~ new Class of Term Loans, in which case such New Term Loans shall have such terms and conditions as the Borrower and the applicable ~~Tranche~~New Term Lenders shall agree; provided, however, (A) the applicable maturity date of any such New Term Loans shall be no earlier than the final maturity date of the then outstanding Term Loans, (B) the Weighted Average Life to Maturity of all New Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans, (C) the interest rate applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Lenders; provided, however, that the interest rate (as determined by the Administrative Agent in accordance with this clause (C) and in consultation with the Borrower) applicable to any such New Term Loans shall not be greater than 50 basis points above the applicable interest rate (including the Applicable Margin) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Term Loans unless the interest rate applicable to the existing Term Loans is increased (which increase shall not require the consent of any Lender or the Borrower) to the extent necessary so that the interest rate applicable to such New Term Loans is no greater than 50 basis points above the interest rates of the existing Term Loans; provided, that in determining the applicable interest rate: (x) margins as well as all upfront and similar fees and original issue discount paid in the primary syndication of the Commitment Amount Increase or the existing Term Loans (based on (x) an assumed four year average life to maturity for the applicable facilities or (y) if the stated maturity of the applicable facilities is less than four years, the actual life to maturity of such facilities), and any amendments to the Applicable Margin under this Agreement that became effective subsequent to the Closing Date but prior to the time of such Commitment Amount Increase shall be included in such calculation, (b) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their affiliates) in its capacity as such in connection with any of the existing Term Loans or to one or more arrangers (or their affiliates) in their capacities as applicable to any Commitment Amount Increase shall be excluded from such calculation and (c) if the New Term Loans include an interest rate floor greater than that applicable to the existing Term Loans or Revolving Credit Commitments, such excess amount shall be equated to interest margin for determining the increase, and (D) the New Term Loans shall share ratably in any prepayments of the existing Term Loans unless the Borrower and the Lenders in respect of the New Term Loans elect lesser payments; and (v) the New Revolving Credit Commitments and/or New Term Loan Commitments will rank pari passu in right of payment and pari passu with respect to Liens on any Collateral with the existing Revolving Credit Commitments or existing Term Loans. (b) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new series of Term Loans or new revolving credit commitments on an Increased Amount Date shall be designated a separate Class of Term Loans or Revolving Loans, as applicable, for all ~~intents and~~ purposes of this Agreement. (c) On any Increased Amount Date on which New Term Loans are made that constitute an increase to an existing Class of Term Loans (with all of the same terms and conditions as such existing Class of Term Loans), subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment of such Class (it being understood that any New Term Loan Facility may provide for delayed draw term loans to be made on a date after the Increased Amount Date), (ii) any New Term Loan made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto. (d) ~~Incremental Commitments~~ On any Increased Amount Date (~~other than Supplemental~~ or such later date as shall be applicable to any delayed draw Term Loan) on which any New Term Loans are made that constitute a new Class of Term Loans, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan ~~Commitments~~Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment (or, in the case of any delayed draw Term Loan, relevant portion thereof) of such Class, (ii) any New Term Loan of such Class made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” made pursuant to a separate Class of Term Credit Facility for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become ~~commitments under this Agreement pursuant~~ a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto. (e) On any Increased Amount Date on which any New Revolving Credit Commitments which are effected as an ~~amendment~~ increase to one or more existing Classes of Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (~~an “Incremental Commitment Amendment”~~i) ~~to this Agreement and,~~ at such time and in such manner as ~~appropriate, the other Loan Documents, executed by~~ the Borrower and the Administrative Agent shall agree, each ~~Additional~~ of the existing Revolving Lender’s shall assign to each New Revolving Lender, and each New Revolving Lender shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans of such Class outstanding on the date of such Increased Amount Date as shall be necessary such that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to such Commitment Amount Increase, (ii) each New Revolving Credit Commitment obtained by a Revolving Lender pursuant to a Commitment Amount Increase shall be deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” and (iii) each Lender with a New Revolving Credit Commitment shall become a Lender with respect to such Class of New Revolving Credit Commitment and all matters relating thereto. (f) On any Increased Amount Date on which any New Revolving Credit Commitments which are effected through the establishment of one or more Class or Classes of new revolving credit commitments, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Revolving Lender and New Revolving Lender of such Class shall make Revolving Credit Commitments available to the Borrower in an amount equal to its New Revolving Credit Commitment, (ii) each New Revolving Credit Commitment made available by a Revolving Lender pursuant to a Commitment Amount Increase shall be deemed for all purposes a Revolving Credit Commitment made pursuant to a separate Class of Revolving Credit Facility and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” made pursuant to such Class and (iii) each New Revolving Lender with a new Revolving Credit Commitment shall become a Lender with respect to such additional Class of Revolving Credit Commitment and new Revolving Credit Facility and all matters relating thereto. (g) The Borrower agrees to pay the reasonable documented out-of-pocket expenses of the Administrative Agent relating to any Commitment Amount Increase. ~~An Incremental~~ Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment ~~Amendment~~ or advance New Term Loans 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 increase its Revolving Credit Commitment or advance New Term Loans. Each Commitment Amount Increase Notice entered into in connection with any Commitment Amount Increase may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 1.16 and, ~~provided~~for the avoidance of doubt, ~~however~~this Section 1.16 shall supersede any provisions of this Agreement (including, without limitation, Section 1.3, Section 1.9, Section 1.15, Section 3, Section 13.7 and Section 13.13) or any other Loan Document that may otherwise prohibit or conflict with any New Revolving Credit Commitment, New Term Loan Commitments or other increases in Term Loans or Revolving Credit Commitments as contemplated by this Section. (ih) Notwithstanding anything to the contrary in this Agreement or any other provision of any Loan Document, if the proceeds of any New Term Loans are intended to be applied to finance an Acquisition permitted hereunder (Ax) with the ~~Incremental Commitments will not be guaranteed by any Subsidiary~~ consent 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~~ Lenders providing such New Term Loans, ~~(B)~~ the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which availability thereof shall be subject to ~~junior prepayment provisions) on a pro rata basis~~ customary “SunGard” or “certain funds” conditionality and (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iiiy) the ~~maturity date~~ existence of any Default or Event of Default and compliance with the ~~weighted average life to maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date~~ Secured Leverage Ratio or the weighted average life to maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term LoansTotal Leverage Ratio, as applicable, ~~and (4) in~~ will be determined as of the ~~case~~ date of ~~an Incremental Revolving Commitment, add, or provide for adjustments to,~~ the ~~definition~~ execution of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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~~ definitive agreement with 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~~thereto.

Appears in 1 contract

Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at~~ At any time ~~and~~ or from time to time on or after the ~~Closing~~ SecondThird Amendment Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (i) prior to ~~request new term loan commitments under~~ the Maturity Date of the applicable Revolving Credit Facility, one additional revolving credit facility tranche (“New Revolving Credit Commitments”) or one or more increases to the existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan ~~credit facilities to be included in this Agreement~~ commitments (the “~~Incremental~~ New Term ~~Loan~~ Commitments”)” and, (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the ~~Incremental Term Loan Commitments, Supplemental Term Loan~~ New Revolving Credit Commitments and the ~~Incremental~~ IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”), ) which may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, ~~after the FourthSixth Amendment Effective Date,~~ (ix) the aggregate principal amount of all such Incremental Commitments ~~permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to~~ shall not exceed (A) in the ~~aggregate principal amount (~~case of any Incremental Revolving Credit Commitments, $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not ~~less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time~~ exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $~~250 million~~ 75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (y) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) if the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of an such Incremental ~~Commitment is to~~ Revolving Credit Commitments or New Term Commitments, as applicable, be ~~incurred in reliance on subsection 7.1(b)(xiv)(i),~~ allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have ~~delivered a certificate~~ occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, ~~certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ and each of ~~any such Incremental Commitment (other than Supplemental Term Loan Commitments)~~ which shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be~~ recorded in ~~a minimum aggregate amount of at least $15,000,000~~ the Register, and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing each New Revolving Credit Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated New Term Lender shall be subject to the ~~provisions of subsection 10.6(h)~~requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the Incremental Commitments, ~~mutatis mutandis,~~ if applicable; and (5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. (b) On any Increased Amount Date on which Increased Revolving Credit Commitments are effected through an increase to the ~~same extent~~ existing Revolving Credit Commitments of any Class, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders of the applicable Class shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as if shall be necessary in order that, after giving effect to all such ~~Incremental~~ assignments and purchases, such Class of Revolving Credit Loans will be held by existing Revolving Credit Lenders of such Class and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Increased Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (b) each Increased Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of such Class and ~~related Obligations had been obtained by~~ each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan of such Class and (c) each New Revolving Credit Lender ~~by way~~ shall become a Lender with respect to the Increased Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of ~~assignment)~~this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan Any New Revolving Loans made pursuant to ~~such Supplemental Term Loan Commitment~~ any New Revolving Credit Commitments established on an Increased Amount Date shall be designated as a ~~Loan under~~ Class of New Revolving Loans separate from the ~~applicable Tranche,~~ Revolving Credit Facility for all ~~intents and~~ purposes of this Agreement. On any Increased Amount Date on which any New Revolving Credit Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, each New Revolving Lender of such Class shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such Class and the New Revolving Loans of such Class made pursuant thereto. (d) ~~Incremental Commitments (other than Supplemental~~ Any New Term ~~Loan Commitments) shall become commitments under this Agreement~~ Loans made pursuant to any New Term Commitments of a separate Class of term loans on an ~~amendment (an “Incremental Commitment Amendment”) to~~ Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this ~~Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender~~Agreement. ~~An Incremental Commitment Amendment may, without the consent~~ On any Increased Amount Date on which any New Term Commitments of any ~~other Lender~~Class are effected, ~~effect such amendments~~ subject to ~~any Loan Documents as may be necessary or appropriate, in~~ the ~~opinion~~ satisfaction of the ~~Borrower~~ foregoing terms and ~~the Administrative Agent~~conditions, ~~to effect the provisions of this subsection 2.5, provided, however, that~~ (i) ~~(A) the Incremental Commitments will not be guaranteed by any Subsidiary~~ each New Term Lender of such Class shall make a Loan to the Borrower ~~other than the Subsidiary Guarantors~~(a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and ~~will~~ (ii) each New Term Lender of such Class shall become a Lender hereunder with respect to the New Term Commitment of such Class and the New Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any existing Class of Term Loans and be ~~secured on a pari passu or~~ treated as the same Class as such Term Loans. (at e) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s ~~option) junior basis by the same Collateral securing the Term Loans,~~ notice of each Increased Amount Date and in respect thereof (Bi) the ~~Incremental~~ Class of New Term Commitments and ~~any incremental loans drawn thereunder (~~the ~~“Incremental Loans”) shall rank pari passu in right~~ New Term Lenders of payment with or (at the Borrower’s option) junior to the 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 Term Loans are outstandingsuch Class , any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) ~~no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii)~~ the ~~maturity date~~ Class of New Revolving Credit Commitments and the ~~weighted average life to maturity~~ New Revolving Loans of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, Class and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); iiiand (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4ii) in the case of each notice to any Revolving Credit Lender of the applicable Class with respect to an ~~Incremental~~ increase in the Revolving ~~Commitment, add, or provide for adjustments to~~Credit Commitments of such Class, the ~~definition~~ respective interests in such Revolving Credit Lender’s Revolving Credit Commitments of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations)such Class, in each ~~case on terms agreed by the Borrower~~case, ~~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,~~ subject to the ~~extent not consistent with~~ assignments contemplated by clause (b) of this ~~Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~Section 2.14.

Appears in 1 contract

Samples: Credit Agreement (ClubCorp Club Operations, Inc.)

Incremental Facilities. (a) (a) So long as no Event of Default ~~under subsection 8(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,~~ Restatement Effective Date to (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (each an “Incremental Term Facility” and collectively the “Incremental Term Loan Commitments”), ) and/or (ii) to increase the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans~~ Total Revolving Credit Commitment (the “~~Supplemental Term Loan Commitments”)~~Incremental Revolving Facility” and such 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 (~~together with the Incremental Term Loan ~~Commitments, Supplemental Term Loan~~ Commitments ~~and the Incremental Revolving Commitments,~~ the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”)) so long as the aggregate then outstanding principal amount of the sum of all unutilized Incremental Commitments and Incremental Loans together with any amounts Incurred under Section 8.2(v) that were Incurred in reliance on the Fixed Incremental Amount does not exceed the Fixed Incremental Amount, plus if the Consolidated Senior Secured Leverage Ratio after giving effect to the Incurrence of Incremental Loans thereof (subject to Section 1.3) is less than or equal to 3.50 to 1.00 (assuming for purposes of such calculation that the commitments under theIncremental Revolving FacilityCommitments being incurred at the time of such calculation are fully drawn and assuming that any unsecured notes are deemed to be secured ratably with the Facilities for purposes of calculating the Consolidated Senior Secured Leverage Ratio), an unlimited amount; provided that, after giving pro forma effect to any Incurrence or discharge of Indebtedness on the ~~FourthSixth Amendment Effective Date, (i)~~ date the ~~aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective~~ applicable Incremental Commitment Agreement (as defined below) becomes ~~effective,~~ effective (subject to (ASection 1.3) and all related transactions as if completed on the ~~aggregate principal amount (not less than zero)~~ first day of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by~~ the ~~Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance~~ twelve month period ending on ~~subsection 7.1(b)(xiv)(i)~~the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the terms hereof, was required on the Test Date) (and the Borrower shall ~~have delivered~~ deliver a ~~certificate~~ certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative ~~Agent,~~ Agent certifying that the Borrower is in compliance with ~~the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~this Section 4.17). Any loans made in respect of any such Incremental Term Commitment ~~(other than Supplemental Term Loan Commitments)~~ shall be made by creating a new Tranche. ~~Each~~ Any Incremental ~~Commitment under anythe Term Loan~~ Revolving Facility ~~made available pursuant to this subsection 2.5~~ Commitments shall be Incurred in ~~a minimum aggregate amount~~ the form of ~~at least $15,000,000~~ increases to the Revolving Credit Commitments and ~~in integral multiples~~ such Incremental Revolving Facility Commitment shall be identical to and form part of ~~$1,000,000 in excess thereof~~such Revolving Facility. (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 4.17 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”)) subject, ~~provided~~(i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or ~~an Affiliate~~ any affiliate of a Lender hereunder, ) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed~~) and the consent~~ ). Any allocation of any ~~swingline lender or issuing lender, as the case may be, that may then be required pursuant~~ Incremental Commitments to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that~~ any ~~such Additional Lender that is an~~ Affiliated Lender shall be subject to the ~~provisions~~ terms of ~~subsection 10.6(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~~Section 11.6(g). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Incremental Commitment Agreement (KAR Auction Services, Inc.)

Incremental Facilities. (a) ~~So long as no Event~~ Upon notice to the Administrative Agent (which shall promptly notify the Lenders) and subject to the terms and conditions of ~~Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right~~this Section 2.22, at any time ~~and from time to time~~ after the ~~Closing~~ Effective Date, the Borrower may solicit the existing Lenders or prospective lenders determined by the Borrower to provide (ix) ~~to request new term loan commitments under one or more new term loan credit facilities to be included~~ increases in ~~this Agreement (~~the ~~“Incremental Term Loan Commitments”), (ii) to increase the loans in any Tranche by requesting new term loan~~ commitments to ~~be added to an existing Tranche of Loans~~ the Revolving Credit Facility (~~the “Supplemental Term Loan Commitments”)~~such increases, ~~(iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the~~ “Incremental Revolving Commitments”~~), and~~ ) and/or (ivy) ~~to request new letter~~ incremental commitments consisting of ~~credit facility commitments under~~ one or more new ~~letter~~ tranches of ~~credit facilities to be included in this Agreement~~ term loans (each, an “Incremental Term Facility” and together with ~~the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the~~ any Incremental Revolving Commitments, the “Incremental ~~Commitments~~Facilities”)) in an aggregate amount not to exceed $1,000,000,000, ~~provided that, after~~ on terms agreed by the ~~FourthSixth Amendment Effective Date, (i~~Borrower and the lender(s) ~~the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time~~ providing the respective Incremental ~~Commitment becomes effective, to~~ Facility (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate subject to the ~~Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~following clauses of this Section 2.22). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) ~~Each request~~ Any such Incremental Facility shall be unsecured. Additionally, (i) in the case of any Incremental Revolving Commitments, such Incremental Revolving Commitments shall be subject to the same terms and conditions (including pricing, interest rate margins, rate floors, fees and maturity) and pursuant to the same documentation as the Revolving Credit Facility, (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, (B) the amortization payments applicable to any 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 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 ~~this subsection 2.5~~ Section 2.22(a) shall set forth the requested amount and proposed terms of the ~~relevant~~ Incremental ~~Commitments~~Facilities, which proposed terms shall not be inconsistent with the requirements of Section 2.22(b). ~~The~~ 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 ~~Commitments~~ Facilities (or any portion thereof) may be ~~made~~ provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such ~~existing Lender and any such~~ bank or other financial institution, an “~~Additional~~ Incremental Lender”), ~~provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ provided that the Administrative Agent (~~such~~ 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 to be unreasonably withheld or delayed) ~~and the consent of any swingline lender~~ to such Lender’s or ~~issuing lender~~Incremental Lender’s, as the case may be, ~~that may then~~ providing such Incremental Facilities if such consent would be required ~~pursuant~~ under Section 9.04 for an assignment of Loans to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or ~~by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”)~~Incremental Lender, as the case may be~~, which~~ . Any Lender not responding within such time period shall be ~~delivered~~ deemed to ~~the~~ have declined to provide any portion of such Incremental Facility. The Administrative Agent ~~for recording in~~ shall notify the ~~Register. Upon effectiveness~~ Borrower and each Lender of the ~~Lender Joinder Agreement~~ Lenders’ responses to each ~~Additional Lender shall be a Lender, and the term loan~~ request made ~~pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement~~hereunder. (de) Incremental Facilities shall become effective, and commitments thereunder shall become Commitments (~~other than Supplemental Term Loan Commitments~~and in the case of any Incremental Revolving Commitment in respect of the Revolving Credit Facility to be provided by an existing Revolving Credit Lender, shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) ~~shall become commitments~~ under this Agreement pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Incremental Facility, if any, each Incremental Lender, if any, and ~~each Additional Lender~~the Administrative Agent. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5~~Section 2.22. (f) If any Incremental Facilities are added in accordance with this Section 2.22, ~~provided, however, that (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~~ , in consultation with the ~~same Collateral securing~~ Administrative Agent, shall determine the ~~Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder~~ effective date (the “Incremental ~~Loans~~Commitments Effective Date”) and the final allocation of such Incremental Facilities. The Administrative Agent shall ~~rank pari passu in right~~ promptly notify the Lenders of ~~payment with or~~ the final allocation of such Incremental Facilities and the Incremental Commitments Effective Date. (~~at the Borrower’s option~~g) ~~junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I)~~ The effectiveness of any Incremental ~~Commitment or any Incremental Loans~~ Facility Amendment shall, unless otherwise agreed 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the ~~Collateral or ranking junior in right of payment~~Administrative Agent, ~~which shall~~ each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to ~~junior prepayment provisions~~the satisfaction on the Incremental Commitments Effective Date of each of the following conditions: (i) the Administrative Agent shall have received on ~~a pro rata basis~~ 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; (y) customary legal opinions; and (z) 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 exists or ~~otherwise provide for more favorable prepayment treatment for~~ would exist after giving effect thereto and all representations and warranties of the Borrower under this Agreement shall be true and correct in all material respects immediately before and after giving effect thereto (except to the extent that such ~~Term Loans than~~ 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 ~~Incremental Loans~~earlier date), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent ~~necessary~~ the proceeds of any Incremental Facility are being used to finance an acquisition or any other permitted investment, if so that the applicable interest rate margin for such 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 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 agreed by the Borrower to the Lenders under such 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 fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental ~~Term Loans~~ Facility, (x) the only representations and warranties the making and accuracy of which will be a 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 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. (h) On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) shall ~~be excluded;~~ become a Lender for all purposes of this Agreement and the other Loan Documents and (Cii) ~~any amendments~~ shall have a commitment under such Incremental Facility which shall become a Commitment hereunder. (i) Upon each establishment of Incremental Revolving Commitments pursuant to ~~the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but~~ this Section 2.22, (i) each Revolving Lender immediately prior to the ~~time~~ effectiveness of such Incremental ~~Term Loans shall also~~ Revolving Commitments will automatically and without further act be ~~included in such calculations and (D)~~ deemed to have assigned to each existing Lender, if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunderany, and ~~in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such~~ each Incremental ~~Commitment Amendment may provide (1) for the inclusion~~Lender, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b)if any, in each case ~~only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date~~ providing a portion of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (~~and related Obligations~~each an “Incremental Revolving Commitments Increase Lender”), and each such Incremental Revolving Commitments Increase Lender will automatically and without further act be 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 effectiveness of such Incremental Revolving Commitments and each ~~case~~ such deemed assignment and assumption of participation interests, the 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, on ~~terms agreed by~~ the ~~Borrower~~date of effectiveness of such Incremental Revolving Commitments, there are any Revolving Loans outstanding, the Administrative Agent and the ~~Lenders providing such Commitments~~ Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender (including ~~any swingline lender or issuing lender); and (vi~~each Incremental Revolving Commitments Increase Lender) having a pro-rata share of the ~~other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to~~ outstanding Revolving Loans based on each such Revolving Lender’s Applicable Revolving Percentage immediately after giving effect to such Incremental Revolving Commitments. The Administrative Agent and the ~~Incremental Commitment Amendment~~Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall ~~otherwise~~ not apply to any transaction that may be ~~reasonably satisfactory~~ effected pursuant to the ~~Borrower~~immediately preceding sentence. (j) The provisions of this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Huntington Ingalls Industries, Inc.)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a)~~ The Borrower or ~~(f) exists or would arise therefrom~~any Guarantor may, ~~the Borrower shall have the right, at any time and~~ from time to time after the Closing Date, upon notice by the Borrower to the Person appointed by the Borrower to arrange an incremental Facility (such Person, the “Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request (i) ~~to request new term loan commitments under~~ an increase in any Term Loan Tranche then outstanding (each, a “Term Commitment Increase”), (ii) the addition of one or more new term loan ~~credit facilities~~ facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”) and/or (iii) an increase in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”; and, together with the Term Commitment Increase and the New Term Commitments the “New Loan Commitments”) by (or in) a principal amount not to ~~be included in~~ exceed the sum of (such sum, at any such time, the “Available Incremental Amount”): (x) the sum of (the amount available under this ~~Agreement~~ clause (x), the “Cash-Capped Incremental Facility”) (I) the greater of (A) $325,000,000 and (B) 100% of Consolidated EBITDA of the Group Parties (and after giving effect to any acquisition consummated concurrently therewith on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.10), minus (II) Incremental Equivalent Cash Component Debt, plus (y) an unlimited amount (the “Ratio-Based Incremental ~~Term Loan Commitments~~Facility”), (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to~~ the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, Maximum Leverage Requirement is satisfied and (bz) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Term Loans is amount 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) all voluntary prepayments, redemptions and repurchases and payments (including prepayments at a discount to par and open market purchases, with credit given for the ~~inclusion, as appropriate,~~ actual amount of the ~~Additional Lenders in any required vote or action~~ cash payment, giving credit to the principal amount of the ~~Required Lenders, Supermajority Lenders~~ Indebtedness repurchased and all prepayments and permanent commitment reductions (including pursuant to Section 3.08 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) substantially similar provisions in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.governing

Appears in 1 contract

Samples: Credit Agreement (V2X, Inc.)

Incremental Facilities. Borrower may (a) ~~So long as no Event of Default under subsection 8(a) or~~ by written notice from Borrower to Revolving Facility Administrative Agent, elect to request prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (~~f) exists or would arise therefrom~~any such increase, the “New Revolving Loan Commitments”) and/or (b) by written notice from Borrower ~~shall have~~ to the ~~right, at any time and from time~~ Term Administrative Agent elect to ~~time after~~ request prior to the ~~Closing~~ Maturity Date, ~~(i) to request new term loan commitments under~~ the establishment of one or more new term loan ~~credit facilities to be included in this Agreement~~ commitments (the “~~Incremental~~ New Term Loan Commitments”), in an aggregate principal amount of (iii) ~~to increase~~ the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental New Term Loan Commitments and the ~~Incremental~~ New Revolving Loan Commitments, ~~the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date,~~ (iii) the aggregate principal amount of ~~Incremental Commitments permitted~~ Debt Incurred pursuant to ~~this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to~~ Sections 6.1(b)(xxiii) and (xxiv) not in excess of (A) the aggregate principal amount of (~~not less than zero~~x) ~~of Indebtedness that is permitted~~ New Term Loan Commitments incurred pursuant to ~~be Incurred under subsection 7.1(b)(xiv)(i~~the First Joinder Agreement and (y) by New Term Loan Commitments and the ~~Borrower or its Restricted Subsidiaries at such time~~ New Revolving Loan Commitments incurred on the Amendment and Restatement Date pursuant to the Amendment Agreement, plus (B) $~~250 million and (ii) if any portion of an Incremental Commitment is to be incurred~~ 100,000,000 in ~~reliance on subsection 7.1(b)(xiv)(i),~~ 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). 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 under anythe Term Loan Facility made available aggregate pursuant to this ~~subsection 2.5~~ clause (B) prior to date of determination plus (C) at Borrower’s option, an unlimited amount of New Term Loan Commitments and/or the New Revolving Loan Commitments so long as the First Lien Net Leverage Ratio is no more than 4.50:1.00 as of the last day of the Fiscal Quarter most recently ended for which a Compliance Certificate required under Section 5.1(c) has been delivered, after giving effect to any such incurrence on a Pro Forma Basis (and excluding the proceeds of any New Revolving Loans and/or New Term Loans from Unrestricted Cash in clause (b) of the definition of Consolidated Total Debt in calculating the First Lien Net Leverage Ratio for purposes of this Section 2.24 and, in the case of unsecured or junior lien Debt Incurred pursuant to Section 6.1(b)(xxiii), calculated assuming such debt is Consolidated First Lien Secured Debt), and, in each case, with respect to any New Revolving Loan Commitment, assuming a borrowing of the maximum amount of Loans available thereunder (such aggregate amount, the “Incremental Amount”). Each New Term Loan Commitment or New Revolving Loan Commitment shall be in a ~~minimum aggregate~~ principal amount ~~of at least~~ that is not less than $~~15,000,000~~ 5,000,000 (or such lesser amount which shall be approved by the applicable Administrative Agent or such lesser amount that shall constitute the difference between $5,000,000 and in all such New Revolving Loan Commitments and New Term Loan Commitments obtained prior to such date), and integral multiples of $1,000,000 in excess ~~thereof.~~ of that amount. Each such notice shall specify the date (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institutioneach, an “~~Additional Lender~~Increased Amount Date”)) on which Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, ~~provided~~as applicable, if shall be effective, which shall be a date not less than 10 Business Days after the date on which such ~~Additional Lender~~ notice is ~~not already a Lender hereunder or an Affiliate of a Lender hereunder,~~ delivered to the ~~consent of the~~ Term Administrative Agent (or such ~~consent not~~ shorter period of time as consented to ~~be unreasonably withheld~~ by the Term Administrative Agent. Borrower may invite any Lender or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender other Person that is an ~~Affiliated~~ Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to provide a New Revolving Loan Commitment or New Term Loan Commitment, as applicable; provided that any Lender approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. Such New Revolving Loan Commitments or New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a Permitted Acquisition or other similar Investment, no Event of Default pursuant to clauses (a), (f) or (g) of Section 8.1 shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Section 3.2(a)(iii) shall be satisfied; provided that in the case of New Revolving Loan Commitments or New Term Loan Commitments the purpose of which is to finance a Permitted Acquisition or other similar Investment, the representations and warranties required under this clause (2) shall be limited only to representations set forth in Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.7, 4.28, 4.29 and 4.30) if so agreed to by the New Revolving Loan Lenders or New Term Loan Lenders, as applicable, providing such New Revolving Loan Commitments or New Term Loans Commitments, as applicable; (3) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and applicable Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the ~~provisions~~ requirements set forth in Section 2.20(e); (4) Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (5) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the applicable Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of ~~subsection 10.6(h), mutatis mutandis, to~~ New Term Loans for all purposes of this Agreement. The proceeds of the ~~same extent as if such Incremental~~ New Revolving Loan Commitments and ~~related Obligations had been obtained~~ New Term Loan Commitments may be applied by ~~such Lender~~ Borrower for working capital and general corporate purposes of Parent and its Subsidiaries and any other use not prohibited by ~~way~~ this Agreement including, without limitation, the financing of ~~assignment). (c) Supplemental~~ any Permitted Acquisition or similar Investment; provided that the New Revolving Loan Commitments and New Term Loan Commitments shall ~~become commitments~~ be not used to prepay any Subordinated Debt. Each of the parties hereto hereby agrees that, unless any New Term Loans constitutes a separate Class of Loans hereunder, Term Administrative Agent may take any and all action as may be reasonably necessary to ensure that all such New Term Loans, when originally made, are Term Loans for all purposes under the Credit Documents and are included in each borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of Term Administrative Agent by allocating a portion of each such New Term Loans to each outstanding Eurodollar Rate Loan of the same Class on a pro rata basis, even though as a result thereof such New Term Loans may effectively have a shorter Interest Period than the Term Loans included in the borrowing of which they are a part (and notwithstanding any other provision of this Agreement ~~pursuant to a supplement specifying the Tranche~~ that would prohibit such an initial Interest Period). If any such New Term Loan is to be ~~increased~~allocated to an existing Interest Period for a Eurodollar Rate Loan, ~~executed by~~ then the ~~Borrower~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Joinder Agreement. On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each ~~increasing Lender substantially~~ of the New Revolving Loan Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such New Revolving Loan Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (b) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term~~ New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (a “New Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of any Series shall make a Loan to Borrower (a “New Term Loan”) 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 New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. The applicable Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be as set forth herein or in the applicable Joinder Agreement. In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Revolving Loans or the Initial Term Loans (whichever is longest), (ii) the applicable Maturity Date of each Series shall be no shorter than the latest of the final maturity of the Revolving Loans and the Term Loans, (iii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, the Weighted Average Yield applicable to the New Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this ~~Agreement.~~ Agreement as amended through the date of such calculation with respect to the Initial Term Loans plus 0.50% per annum unless the interest rate with respect to the Initial Term Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Initial Term Loans to equal the Weighted Average Yield then applicable to the New Term Loans less 0.50% and (div) ~~Incremental Commitments (~~all other ~~than Supplemental~~ terms of the New Term Loans and New Term Loan Commitments~~) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and~~, if not consistent with the terms of the Initial Term Loans, as ~~appropriate,~~ applicable must be reasonably acceptable to the ~~other Loan Documents, executed by the Borrower and each Additional Lender~~Term Administrative Agent. ~~An Incremental Commitment Amendment~~ Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any Loan~~ this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ applicable Administrative ~~Agent,~~ Agent to effect the ~~provisions~~ provision of this subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerSection 2.24.

Appears in 1 contract

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

Incremental Facilities. (a) So long as no Default or Event of Default ~~under subsection 8(a) or (f)~~ exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement), a Permitted Escrow Subsidiary (any such Permitted Escrow Subsidiary, an “Escrow Borrower”), 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 commitments thereunder, the “Incremental Term Loan Commitments”), and each, a “New Term Facility”) and (ii) to increase the ~~loans in any Tranche~~ 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 (~~together with the Incremental Term Loan Commitments, ~~Supplemental Term Loan Commitments and the Incremental Revolving Commitments,~~ the “Incremental Commitments”, and each, an “Incremental Facility”), provided that, ~~after the FourthSixth Amendment Effective Date, (i)~~ the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Section 2.14 shall not exceed, at the time of Incurrence or establishment of the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i)Commitment, 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)Maximum Incremental Facilities Amount. 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lesser amounts as the Administrative Agent may agree). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”), ~~provided~~provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, such Additional Lender shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be,~~ that may ~~then~~ be required pursuant to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ Section 10.07 (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 10.07(i), 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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O K-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P K-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the ~~Register~~Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Incremental Facility, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. Borrower may agree to accept a lesser amount of any Incremental Facility than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Facility in excess of the maximum amount requested (or permitted), then Borrower shall have the right to allocate such commitments on whatever basis Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, (i) effect such amendments to any Loan ~~under~~ Documents (including amendments to Section 2.07 to increase the amortization payments thereunder (if any) to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Section 2.14(c) and (ii) if the Borrower determines to increase the interest rate or fees in respect of any Supplemental Term Loan Commitments, increase the interest rate or fees in respect of the existing Tranche of Term Loans to which such Supplemental Term Loan Commitments pertain such that it equals to the interest rate or fees in respect of such Supplemental Term Loan Commitments (provided that, subject to the provisos to Section 2.14(d)(iv), if applicable, the Borrower at its election (in its sole discretion) may pay upfront or closing fees in respect of any Supplemental Term Loan Commitments and shall not be obliged to pay such upfront or closing fees in respect of the existing Tranche of Term Loans to which such Supplemental Term Loan Commitments pertain, except to the extent that such fees would cause such Supplemental Term Loan Commitments not to be fungible with the applicable Tranche of Term Loans). (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, an Escrow Borrower (if applicable) 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 ~~subsection 2.5~~Section 2.14 (including, without limitation, with respect to any Incremental Commitments to be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Collateral Documents), provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Guarantor), and if secured (other than with respect to Permitted Escrow Funds in respect of any such Incremental Commitments that are subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Commitments are subject to such Permitted Escrow Arrangement)), will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the ~~Term Loans~~Loans (so long as any such secured Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 ~~Term~~ Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement) and (C) no Incremental Commitment Amendment may provide for ~~(I)~~ any Incremental Commitment or any Incremental Loans to be secured by any ~~Collateral or~~ Lien on assets (other ~~assets~~ than with respect to Permitted Escrow Funds in respect of any such Incremental Loans that are subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement)) of any Loan Party that do not also secure the Term Loans and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)~~; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the ~~maturity date~~ Maturity Date and the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Initial Term ~~B-45 Loans~~ Loans, as applicable (in each case, other than ~~(a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for~~ an earlier maturity date ~~and/or a~~ or shorter ~~average life~~ Weighted Average Life to ~~maturity than the Term B-45 Loans, and~~ Maturity (bx) ~~an earlier maturity date and/or shorter weighted average life to maturity~~ for customary bridge financings, ~~that~~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~~ Weighted Average Life to ~~maturity~~ Maturity than the Maturity Date of the Initial Term ~~B-45~~ Loans or the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Initial Term ~~B-45~~ Loans, as applicable, or (y) pursuant to a Permitted Escrow Arrangement with respect to the proceeds of the Incremental Loans made pursuant to such Incremental Commitments (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement)); (iv) the currency, interest rate ~~margins~~ margins, (subject to Section 2.14(d)(iii)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors (if any) applicable to the loans made pursuant to the ~~Incremental Commitments, and the amortization schedule applicable to any Incremental~~ New Term ~~Loans,~~ Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any second lien (i.e., secured on a pari passu basis with the Lien securing the Loans) syndicated floating rate term loans ~~Incurred by the Borrower~~ denominated in Dollars incurred under any Incremental Term Loan ~~Commitment~~ Commitments or Supplemental Term Loan Commitments (x) with a Stated Maturity that is earlier than 24 months following the Maturity Date in respect of the Initial Term Loans and (y) in an aggregate principal amount in excess of $50.0 million, are higher than the applicable interest rate margin for ~~any~~ the Initial Term Loans by more than 50 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the Initial Term Loans at the time such Incremental Term Loan Commitments or Supplemental Term Loan Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans~~ Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan ~~Commitment~~ Commitments or Supplemental Term Loan Commitments minus 50 basis ~~points~~points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Loans incurred under such Incremental Term ~~Loans~~Loan Commitments or Supplemental Term Loan Commitments, (A) ~~original issue discount (“OID”)~~ 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~~ all Lenders under such Initial Term Loans or any such Incremental ~~Term Loan~~ Loans, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such 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~~ such Incremental ~~Term~~ Loans that are not shared with all Additional Lenders providing such Incremental ~~Term~~ Loans ~~shall~~ shall, in each case, be excluded; (C) any amendments to the Applicable ~~Margin~~ Rate or effective interest rate margin on ~~any~~ the Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment Effective~~ Closing Date but prior to the effective time of such Incremental ~~Term~~ Loans shall also be included in such ~~calculations and~~ calculations; (D) if ~~the~~ such Incremental ~~Term~~ Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ 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~~ Rate for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable ~~Margin~~Rate) applicable to such Initial Term Loans shall be increased by such ~~amount~~amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate; (E) if such Incremental Loans include an interest rate floor lower than the interest rate floor applicable to the Initial Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Initial 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 Initial Term Loans and the interest rate floor applicable to such Incremental Loans (which shall be deemed to equal 0% for any Incremental 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 Initial 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 Loans for purposes of determining whether an increase in the Existing Interest Rate shall be required; and (F) if the Initial 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 ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit ~~facilities,~~ facilities and (3) for the amendment of the definitions of “Additional Permitted Obligations” ”, “Contribution Indebtedness”, “Disqualified Stock”, this Section 2.14(d), Section 7.03(b)(xiv) and ~~“Refinancing Indebtedness” and subsection 7.8(b~~Section 7.10(b), in each case only to extend the maturity date and the ~~weighted average life~~ Weighted Average Life to ~~maturity requirements,~~ Maturity requirements from the Maturity Date and Weighted Average Life to Maturity in respect of ~~such Term Loans and weighted average life to maturity of such~~ the Initial Term Loans to the extended maturity date and the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity in respect of such Incremental ~~Term~~ Loans, as applicable, and (4) in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.and

Appears in 1 contract

Samples: Second Lien Credit Agreement (Syniverse Holdings Inc)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right,~~ The Company may at any time and from time to ~~time after~~ time, by delivery to the ~~Closing Date~~Administrative Agent of a written notice signed by a Responsible Officer of the Company, request the addition of a new tranche of term loans (~~i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the~~ an “Incremental Term ~~Loan Commitments~~Facility”), a new tranche of revolving loans (~~ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to~~ an ~~existing Tranche of 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”)~~Tranche Facility” and, ~~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 (~~together with the Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments~~Facility, the “Incremental ~~Commitments~~Facilities”), ~~provided that~~an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Increase”), an increase in the Aggregate Revolving Euro Tranche Commitments (an “Incremental Euro Tranche Increase”), an increase in the Aggregate Revolving Yen Tranche Commitments (an “Incremental Yen Tranche Increase” and, together with the Incremental Revolving Increases and the Incremental Euro Tranche Increases, the “Incremental Increases”) or a combination thereof in an aggregate principal amount for all such Incremental Facilities and Incremental Increases incurred after the ~~FourthSixth Amendment~~ Effective ~~Date~~Date not exceeding, at any time of determination, the sum of (i) an amount equal to the greater of (A) $750,000,000 and (B) 75% of EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b) (the “Incremental Fixed Amount Basket”) minus the aggregate principal amount of ~~Incremental Commitments permitted~~ all additional Indebtedness issued or incurred pursuant to ~~this~~ subsection ~~2.5 is limited~~8.2(e)(i) or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such additional Indebtedness was issued or incurred in reliance on the Incremental Equivalent Fixed Amount Basket, or any refinancing or replacement of any such Indebtedness in accordance with subsection 8.2(e)(ii)) and (ii) the maximum amount which may be incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence and all other transactions to be consummated in connection therewith (including the incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.50 to 1.00; provided that, subject to the provisions in subsection 2.6(e) below, at the time of any such request and upon the ~~respective~~ effectiveness of the Incremental ~~Commitment becomes effective~~Facility Amendment referred to below, to (A) no Default or Event of Default shall exist, and (B) the Company shall be in Pro Forma Compliance; provided, further, that for purposes of clause (ii) of this sentence and clause (B) in the proviso immediately above, in the case of an Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Increases were fully drawn but using only the actual Total Revolving Credit Outstandings (and not the amount of the Revolving Credit Commitments) under the Revolving Credit Facility, the actual Total Revolving Euro Tranche Outstandings (and not the amount of the Revolving Euro Tranche Commitments) under the Revolving Euro Tranche Facility or the Outstanding Amount of all Revolving Yen Tranche Loans (and not the amount of the Revolving Yen Tranche Commitments) under the Revolving Yen Tranche Facility, as the case may be, in effect immediately prior to the closing of such Incremental Revolving Tranche Facility or Incremental Increase and for the purpose of computing the usage of the basket in clause (i) of this sentence, the aggregate ~~principal~~ amount of outstanding Incremental Facilities incurred solely in reliance on clause (~~not less than zero~~ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness ~~that is~~ permitted to be ~~Incurred under subsection 7.1(b)(xiv)(i~~incurred pursuant to clause (i) ~~by the Borrower~~ or ~~its Restricted Subsidiaries at such time plus (B) $250 million and~~ clause (ii) ~~if any portion~~ of ~~an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i)~~the immediately preceding sentence, the ~~Borrower shall~~ Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i). If both amounts are available and the Company does not make an election, the Company will be deemed to have ~~delivered a certificate~~ incurred such Indebtedness pursuant to ~~the Administrative Agent, certifying compliance with the financial test set forth in~~ clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such clause (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any such Incremental Commitment~~ i) or clause (~~other than Supplemental Term Loan Commitments~~ii) shall be made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess after the incurrence thereof. (b) Each ~~request~~ Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not less than $25,000,000 (or, in the case of any Incremental Revolving Tranche Facility denominated in an Alternative Currency, the Alternative Currency Equivalent in such Alternative Currency of $25,000,000), each Incremental Euro Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Euro of $25,000,000 and each Incremental Yen Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Yen of $10,000,000. (c) Each Incremental Facility (i) shall rank pari passu or junior (except in the case of any obligation thereunder of a Designated Borrower that is a Foreign Subsidiary, which would be senior as a result of such Designated Borrower not guaranteeing or providing collateral security for the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans) in right of payment and of security with the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the requirement that any Lien thereunder on an property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral/Covenant Release Date as provided herein, (ii) in the case of an Incremental Revolving Tranche Facility, shall not mature earlier than (and shall not have scheduled commitment reductions occurring before) the Termination Date with respect to the Revolving Credit Facility, the Revolving Euro Tranche Facility or the Revolving Yen Tranche Facility, (iii) in the case of an Incremental Term Facility, shall not mature nor have a Weighted Average Life that is earlier than the Termination Date with respect to the Term A-1 Facility or, if later, the latest Termination Date with respect to any Incremental Term Facility outstanding at such time (provided that, with respect to this clause (iii), (A) at the option of the Company, this clause (iii) shall not apply to any Permitted Bridge Indebtedness, (B) so long as such Incremental Term Facility is not incurred under the Incremental Fixed Amount Basket, the Company may incur Incremental Term Facilities with a maturity and/or Weighted Average Life that is less than the Term A-1 Loans or, if later, the latest Termination Date with respect to any Incremental Term Facility outstanding at such time in an aggregate amount after the Effective Date not to exceed the greater of (A) $400,000,000 and (B) 40% of EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b), and (C) in determining the latest Termination Date in respect of any Term Facility for purposes of this clause (iii), any Term Facility outstanding with a stated maturity date later than the five year anniversary of the incurrence of such Term Facility shall be disregarded), (iv) in the case of an Incremental Term Facility, for purposes of rights to payment, prepayments and voting, shall be treated no more favorably than the existing Term A-1 Loans and (v) shall not contain additional or different covenants or financial covenants which are materially more restrictive than the covenants herein on the Effective Date or the Financial Covenants unless (x) the Lenders under the existing Loans also receive the benefit of such more restrictive terms (it being understood to the extent that any covenant is added for the benefit of any such Indebtedness, no consent shall be required from the ~~Borrower pursuant~~ Administrative Agent or any Lender to ~~this subsection 2.5~~ the extent that such covenant is also added for the benefit of any corresponding existing Loans), (y) any such provisions apply after the latest Termination Date applicable to outstanding Loans at such time, or (z) such terms shall be reasonably satisfactory to the Administrative Agent and the Company (provided that a certificate of a Responsible Officer delivered to the Administrative Agent in connection therewith, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or copies of the principal documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within fifteen (15) Business Days that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Any such notice shall set forth the ~~requested~~ amount and ~~proposed~~ terms of the relevant Incremental ~~Commitments. The~~ Facility or Incremental ~~Commitments~~ Increases requested by the Company and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Facility or providing any portion ~~thereof~~of such Incremental Increase. (d) The Company may arrange for one or more banks or other financial institutions, each of which shall be ~~made by any existing~~ reasonably satisfactory to the Administrative Agent and the Company and, with respect only to Incremental Revolving Increases, the Swing Line Lender, the L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Euro Tranche Increases, the Swing Line Euro Tranche Lender ~~or by any other bank or financial institution~~ (~~any such existing Lender and~~ any such bank or other financial ~~institution,~~ institution being called an “Additional Lender”), ~~provided, if such Additional Lender is not already~~ to extend commitments under the Incremental Facility or provide a ~~Lender hereunder or an Affiliate of a Lender hereunder, to the consent~~ portion of the ~~Administrative Agent (such consent not to be unreasonably withheld or delayed)~~ Incremental Increase, and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated no Lender shall be ~~subject~~ required to ~~the provisions~~ provide a portion of ~~subsection 10.6(h), mutatis mutandis, to the same extent as if~~ any such Incremental Facility or provide a portion of any such Incremental Increase. Commitments ~~and related Obligations had been obtained by such Lender by way~~ in respect of ~~assignment). (c) Supplemental Term Loan Commitments~~ Incremental Facilities or any Incremental Increases shall become ~~commitments~~ Commitments under this ~~Agreement pursuant to a supplement specifying the Tranche to be increased~~Agreement, ~~executed by the Borrower~~ and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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 become a ~~Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan~~ Lender under ~~the applicable Tranche, for all intents and purposes of~~ this Agreement~~. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement~~ , pursuant to an amendment (an “Incremental ~~Commitment~~ Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and~~ Company, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental ~~Commitment~~ Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents ~~as may be~~ to the extent (but only to the extent) necessary ~~or appropriate, in the opinion of the Borrower and the Administrative Agent,~~ to effect the provisions of this Section. Subject to subsection ~~2.5~~2.6(e) below, ~~provided, however,~~ effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in subsection 6.2 (it being understood that (iall 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 Amendment) ~~(A)~~ and the delivery of customary legal opinions. The proceeds of the Incremental Facilities or the Incremental Commitments will ~~not~~ be ~~guaranteed by any Subsidiary of the Borrower~~ used for working capital and other ~~than the Subsidiary Guarantors, and will be secured on a pari passu or~~ general corporate purposes. (~~at the Borrower’s option~~e) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments shall be no earlier than or shorter than, as In the case ~~may be, the Maturity Date or the weighted average life to maturity~~ of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term ~~Loans, shall~~ Facility the proceeds of which are to be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased used to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be requiredfinance a substantially concurrent Limited Conditionality Acquisition, to the extent ~~an increase in~~ requested by the ~~interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunder,~~ Company and in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by ~~the Borrower,~~ the Administrative Agent and the Lenders and the Additional Lenders providing such ~~Commitments~~ Incremental Facility, notwithstanding anything in this subsection 2.6 or subsection 6.2 to the contrary, the following provisions shall apply: (~~including~~ i) any ~~swingline lender~~ condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Term Facility or ~~issuing lender);~~ to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such Incremental Facility Amendment or the funding of such Credit Extensions may be limited by customary “SunGard” or other customary applicable “certain funds” conditionality provisions, so long as all such representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects, at the time of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition; (viii) the ~~other terms and documentation in respect thereof,~~ satisfaction of any condition to the ~~extent not consistent~~ effectiveness of the Incremental Facility Amendment with ~~this Agreement as in effect prior~~ respect to such Incremental Term Facility or to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Incremental Facility Amendment or the funding of such Credit Extensions (or after giving effect to such Credit Extensions) shall be determined (before and after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the ~~Incremental Commitment Amendment~~incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition (so long as no Event of Default under any of subsections 9(a) or (f) shall ~~otherwise~~ have occurred and be ~~reasonably satisfactory~~ continuing at the time of the consummation of such Limited Conditionality Acquisition or would result therefrom); and (iii) the satisfaction of any condition set forth in clause (ii) of subsection 2.6(a) or clause (B) of the proviso set forth in subsection 2.6(a) shall be determined (after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the ~~Borrower~~incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition.

Appears in 1 contract

Samples: Credit Agreement (Graphic Packaging International, LLC)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower shall have the right, at~~ At any time ~~and~~ or from time to time on or after the ~~Closing~~ SecondThird Amendment Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (i) prior to ~~request new term loan commitments under~~ the Maturity Date of the applicable Revolving Credit Facility, one additional revolving credit facility tranche (“New Revolving Credit Commitments”) or one or more increases to the existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan ~~credit facilities to be included in this Agreement~~ commitments (the “~~Incremental~~ New Term ~~Loan~~ Commitments”)” and, (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the ~~Incremental Term Loan Commitments, Supplemental Term Loan~~ New Revolving Credit Commitments and the ~~Incremental~~ IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”), ) which may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, ~~after the FourthSixth Amendment Effective Date,~~ (ix) the aggregate principal amount of all such Incremental Commitments ~~permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to~~ shall not exceed (A) in the ~~aggregate principal amount (~~case of any Incremental Revolving Credit Commitments, $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not ~~less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time~~ exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $~~250 million~~ 75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (y) any such request shall be for an aggregate principal amount of Incremental Commitments that is not less than $5,000,000 (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a US_ACTIVE:\44299297\214\35899.0483 date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (ii) if the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of an such Incremental ~~Commitment is to~~ Revolving Credit Commitments or New Term Commitments, as applicable, be ~~incurred in reliance on subsection 7.1(b)(xiv)(i),~~ allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have ~~delivered a certificate~~ occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, ~~certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ and each of ~~any such Incremental Commitment (other than Supplemental Term Loan Commitments)~~ which shall be ~~made by creating a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be~~ recorded in ~~a minimum aggregate amount of at least $15,000,000~~ the Register, and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing each New Revolving Credit Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated New Term Lender shall be subject to the ~~provisions of subsection 10.6(h), mutatis mutandis, to~~ requirements set forth in Section 10.15; (4) 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~~ Borrower shall ~~become commitments under this Agreement~~ make any payments required pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 fees payable Section 3.05 in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth Amendment Effective Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) Commitments, if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including any swingline lender or issuing lender); and (vi5) the Borrower shall deliver or cause to be delivered any customary legal opinions or other ~~terms and documentation~~ documents reasonably requested by Administrative Agent in ~~respect thereof, to the extent not consistent~~ connection with ~~this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower~~any such transaction.

Appears in 1 contract

Samples: Credit Agreement (ClubCorp Holdings, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a)~~ The Parent Borrower or ~~(f) exists or would arise therefrom,~~ the Foreign Subsidiary Borrower ~~shall have~~ may by written notice to the ~~right, at any time and from time to time after the Closing Date, (i)~~ Administrative Agent elect to request ~~new term loan commitments under~~ the establishment of one or more ~~new~~ additional tranches of term ~~loan credit facilities to be included in this Agreement~~ loans (the commitments thereto, the “~~Incremental~~ New Term Loan Commitments”), and (ii) the Parent Borrower or the Foreign Subsidiary Borrower may by written notice to ~~increase~~ Administrative Agent elect to request the ~~loans~~ establishment of one or more increases in ~~any Tranche by requesting new term loan commitments to~~ Series 2013 Revolving Credit Commitments or Series 2016 Revolving Credit Commitments, which may be ~~added to an existing Tranche of Loans~~ Series 2013 U.S. Revolving Credit Commitments or Series 2016 U.S. Revolving Credit Commitments (the “~~Supplemental~~ New U.S. Revolving Credit Commitments”) or Series 2013 Spanish Revolving Credit Commitments or Series 2016 Spanish Revolving Credit Commitments (the “New Spanish Revolving Credit Commitments” and, together with the New U.S. Revolving Credit Commitments, the “New Revolving Credit Commitments”; the New Revolving Credit Commitments together with the New Term Loan Commitments, collectively, the “New Loan Commitments”), in the case of clauses (~~iii~~a)(i) ~~to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”),~~ and (iva)(ii) ~~to request new letter~~ by an aggregate amount not in excess of ~~credit facility commitments under one or more new letter of credit facilities to be included~~ the Maximum Incremental Facilities Amount in this Agreement (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate ~~principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at~~ from the ~~time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (~~Restatement Effective Date and not less than ~~zero~~$25,000,000 individually (or such lesser amount as (x) ~~of Indebtedness that is permitted to~~ may be ~~Incurred under subsection 7.1(b)(xiv)(i)~~ approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrower ~~or its Restricted Subsidiaries at~~ proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such ~~time plus (B) $250 million and (ii) if any portion of an Incremental Commitment~~ notice is ~~to be incurred in reliance on subsection 7.1(b)(xiv)(i), 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)~~. ~~Any loans made in respect of~~ The applicable Borrower may approach any ~~such Incremental Commitment~~ Lender or any Person (other than ~~Supplemental Term~~ a natural person) to provide all or a portion of the New Loan Commitments~~) shall be made by creating~~ ; provided that any Lender offered or approached to provide all or a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms portion of the ~~relevant Incremental Commitments. The Incremental~~ New Loan Commitments (may elect or ~~any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution~~decline, ~~an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder~~in its sole discretion, to ~~the consent of the Administrative Agent (~~provide a New Loan Commitment. In each case, such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 New Loan Commitments shall become ~~commitments under this Agreement~~ effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to ~~a supplement specifying the Tranche to be increased,~~ one or more Joinder Agreements executed and delivered by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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~~ and each of which shall be recorded in the ~~provisions of this subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors,~~ Register and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to ~~junior prepayment provisions~~the requirements set forth in Section 5.4(c) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the ~~interest rate margins~~ applicable ~~to the loans made~~ Borrower shall make any payments required pursuant to Section 2.11 in connection with the ~~Incremental~~ New Loan Commitments, as applicable; and (v) the applicable 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 New Term Loans made on an Increased Amount Date may, as agreed to by the Parent Borrower and the ~~amortization schedule applicable to any Incremental~~ New Term Lenders making such New Term Loans, ~~shall~~ be ~~determined by the Borrower and the applicable Additional Lenders; provided that~~designated as a separate series (“Series”) of New Term Loans or a part of an existing Series or Class of Term Loans, in each case for all purposes of this Agreement. Without limiting the ~~event that~~ foregoing, 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Series B New Term Loans shall be ~~increased~~ deemed to be of the same Series and Class as the Series 2018 Extended Term Loans or, if the holder hereof has elected to extend such Loans to Series 2021 Extended Term Loans pursuant to the ~~extent necessary so that~~ Fifth Amendment, the ~~applicable interest rate margin for such~~ Series 2021 Extended Term Loans ~~is equal to~~ for all purposes under the ~~applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that~~Credit Agreement, in determining the applicable interest rate margins for the 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 such 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 maturityother than Section 2.5(b)(iii); (B) any arrangement, structuring or other 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i~~this Agreement in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of 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~~test). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan ~~under~~ Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term ~~Loans~~Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and 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 Term ~~Loans~~ Loan 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~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the Term ~~Loans~~ Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ 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 acquisition) or Recovery Event or from Excess Cash Flow, to the ~~applicable~~ extent the Net Available Cash 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of ~~such~~ any 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith, which determination shall be conclusive), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as applicable, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the Earlier Maturity Date Basket); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans~~ syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the Tranche B Term Loan Maturity Date, Incurred by the Borrower ~~under~~ pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the First Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any ~~Incremental Term Loan Commitment~~ acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for ~~any~~ the Tranche B Term Loans by more than 50 75 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the applicable Tranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans~~ Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 75 basis ~~points~~points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable Tranche B 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 such Tranche B Term Loans or any Incremental Term ~~Loan~~ Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Tranche B Term Loans are issued in a manner such that all such Tranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of Tranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Tranche B Term Loans shall be determined on a weighted average basis); (B) any ~~arrangement,~~ arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans ~~that~~ (other than, in the case of syndicated Incremental Term Loans, and only if such fees are ~~not~~ shared with all Additional Incremental Lenders providing such syndicated Incremental Term ~~Loans shall~~ Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on ~~any~~ the applicable Tranche B Term Loans that became effective subsequent to the ~~FifthSixth~~ First Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such ~~calculations and~~ calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ the applicable 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 such Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Tranche B Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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, amount 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.~~necessary

Appears in 1 contract

Samples: Credit Agreement (Core & Main, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Mirion Technologies, Inc.)

Appears in 1 contract

Samples: Credit Agreement (DT Midstream, Inc.)

Incremental Facilities. (a) So The Parent Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that, at the time of (and after giving effect to) the establishment of any Incremental Revolving Commitments or Incremental Term Commitments, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Commitments established pursuant to this Section 2.21, together with the aggregate amount of all Incremental Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(a)(xx), shall not exceed the greater of (A) $300,000,000 and (B) an amount such that, after giving effect to the making of such Incremental Revolving Commitments (and assuming any such Incremental Revolving Commitments are fully drawn) and Incremental Term Loans and the making of any other Indebtedness incurred substantially simultaneously therewith, the Senior Secured Net Leverage Ratio, calculated on a pro forma basis, is no greater than 2.50 to 1.00. Each such notice shall specify (A) the date on which the Parent Borrower proposes that the Incremental Revolving Commitments 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 agreed that (x) 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 Parent Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lenders). (b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments 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 Tranche A Term Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, (ii) any Incremental Term Loan shall have terms, in Parent Borrower’s reasonable judgment, customary for a term loan under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, provided that 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 Tranche A Terms Loans, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the later of (1) the Tranche A Maturity Date and (2) the Latest Maturity Date then in effect with respect to Extended Term Loans, (v) except as set forth above, the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants, (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vii) any Incremental Facility shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent). Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, 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 the foregoing, in no event shall there be more than seven maturity dates in respect of the Credit Facilities (including any Extended Term Loans, Extended Revolving Commitments, Replacement Term Loans or Replacement Revolving Facilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Parent Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Parent Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default ~~under subsection 8(a~~shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) ~~or (f) exists or would arise therefrom~~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 on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof that such Incremental Revolving Commitments are fully drawn), Holdings and the Parent Borrower shall ~~have~~ be in pro forma compliance with the ~~right~~financial covenants set forth in Sections 6.12 and 6.13, at (iv) the Parent Borrower shall make any ~~time~~ payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and ~~from time to time after~~ the ~~Closing Date~~related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (i) ~~to request new term loan commitments under one~~ no Default or ~~more new term loan credit facilities to~~ Event of Default shall have occurred and be ~~included~~ continuing as of the date of entry into the definitive acquisition documentation in ~~this Agreement~~ respect of such Limited Conditionality Acquisition (the “~~Incremental Term Loan Commitments~~Limited Conditionality Acquisition Agreement”), (ii) ~~to increase~~ on the ~~loans~~ date of effectiveness of the Limited Conditionality Acquisition Agreement, the representations and warranties of each Loan Party set forth in ~~any Tranche by requesting new term loan commitments to~~ the Loan Documents shall be ~~added to an existing Tranche~~ true and correct on and as of ~~Loans (the “Supplemental Term Loan Commitments”),~~ such date and (iii) ~~to request new commitments under one or more new revolving facilities to be included in this~~ on the date of effectiveness of the Limited Conditionality Acquisition 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 (together with the~~ assuming such Incremental Term ~~Loan Commitments~~Loans were made on such date, ~~Supplemental Term Loan Commitments~~ Holdings and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Parent Borrower shall ~~have delivered a certificate to the Administrative Agent, certifying~~ be in pro forma compliance with the financial ~~test~~ covenants set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new TrancheSections 6.12 and 6.13. Each Incremental ~~Commitment under anythe Term Loan~~ Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to give effect to the provisions of this ~~subsection 2.5~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental ~~Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no~~ Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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~~ be a “Lender” (and a Lender in respect of ~~OID~~Commitments and Loans of the applicable Class) ~~payable by the Borrower to the Lenders under such Term Loans or any Incremental Term Loan in the initial primary syndication thereof~~ hereunder, and henceforth shall be ~~included~~ entitled to all the rights of, and benefits accruing to, Lenders (~~with OID being equated to interest based on an assumed four-year life to maturity); (B~~or Lenders in respect of Commitments and Loans of the applicable Class) ~~any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans~~ hereunder and shall be ~~excluded;~~ bound by all agreements, acknowledgements and other obligations of Lenders (~~C) any amendments to the Applicable Margin on any Term~~ or Lenders in respect of Commitments and Loans ~~that became effective subsequent to the FifthSixth 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 such Term Loans, such increased amount shall be equated to the applicable ~~interest rate margin for purposes of determining whether an increase to~~ Class) hereunder and under the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicableLoan Documents, and (4ii) in the case of an any Incremental Revolving Commitment, ~~add~~(A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or ~~provide for adjustments to,~~ reduction from time to time as set forth in the definition of the term “~~Agent Default,~~Revolving Commitment.” ~~“Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for~~ For the avoidance of doubt, upon the effectiveness of any Incremental Revolving ~~Commitments~~ Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and ~~related Obligations~~each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit 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. (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 Parent Borrower 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 Parent Borrower referred to in paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case ~~on terms agreed by the Borrower, the Administrative Agent and~~ advising the Lenders ~~providing such Commitments (including~~ of the details thereof and, in the case of effectiveness of any ~~swingline lender or issuing lender); and (vi)~~ Incremental Revolving Commitments, of the ~~other terms and documentation in respect thereof, to~~ Applicable Percentages of the ~~extent not consistent with this Agreement as in effect prior to~~ Revolving Lenders after giving effect thereto and of the assignments required to ~~the Incremental Commitment Amendment, shall otherwise~~ be ~~reasonably satisfactory~~ made pursuant to ~~the Borrower~~paragraph (e) above.

Appears in 1 contract

Samples: Replacement Facility Amendment (Trimas Corp)

Incremental Facilities. (a) So long as no Default or Event of Default ~~under subsection 8(a) or~~ (for, in the case of term loans being incurred on the Release Date to repay the Initial Term Loans prepaid pursuant to the final proviso of Section 2.5(a)(i), no Major Default) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time on and after the ~~Closing~~ FundingRelease Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), ) and (ii) to increase the ~~loans in any Tranche~~ existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the commitments thereunder, the “Supplemental Term Loan Commitments” and each a “Supplemental Term Facility”~~), (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 Supplemental Term Loan Commitments together with the Incremental Term Loan ~~Commitments, Supplemental Term Loan Commitments and the Incremental Revolving~~ Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date, (i)~~ the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Section 2.14 shall not exceed, at the time the respective Incremental Commitment becomes effective, the Maximum Incremental Facilities Amount, plus on the Release Date, an amount equal to ~~(A)~~ the ~~aggregate principal~~ amount ~~(not less than zero)~~ of ~~Indebtedness that is permitted~~ Initial Term Loans to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance prepaid with the ~~financial test set forth in~~ proceeds of such ~~clause (together with calculations demonstrating compliance with~~ Incremental Commitments on such ~~ratio~~date pursuant to Section 2.5(a)(i). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Section 2.14 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lesser amounts as the Administrative Agent may agree). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 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 ~~existing Lender and any such~~ bank or other financial institution, an “Additional Lender”), ~~provided~~provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be,~~ that may ~~then~~ be required pursuant to ~~subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ Section 10.07 (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~Section 10.07(i), 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 O K-1 (the “Increase Supplement”) or by each Additional Lender ~~that is not an existing Lender~~ substantially in the form attached hereto as Exhibit P K-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the ~~Register~~Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Supplemental Term Facility, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. Borrower may agree to accept a lesser amount of any Supplemental Term Facility than originally requested. In the event there are Lenders and Additional Lenders that have committed to a Supplemental Term Facility in excess of the maximum amount requested (or permitted), then Borrower shall have the right to allocate such commitments on whatever basis Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a ~~Lender,~~ Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a ~~Loan under the applicable Tranche, for all intents and purposes of this Agreement~~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 ~~subsection 2.5~~Section 2.14 (including, without limitation, with respect to any Incremental Commitments to be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Security Agreement), provided, however, that (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 ~~Term Loans~~Loans (so long as any such Incremental Commitments (and related Obligations) are subject to an Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and 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 ~~Term~~ Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement) 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans~~), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans)~~; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) in the case of a New Term Facility, the maturity date and the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the ~~Maturity Date~~ maturity date or the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins and (subject to Section 2.14(d)(iii)) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any term loans ~~Incurred~~ incurred by the Borrower under any ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities are higher than the applicable interest rate margin for ~~any~~ the Initial Term Loans by more than 50 basis points, then the Applicable ~~Margin~~ Rate for ~~such~~ the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for ~~such~~ the Initial Term Loans is equal to the applicable interest rate margins for such ~~Incremental~~ New Term ~~Loan Commitment~~ Facilities minus 50 basis points; ~~provided further that~~provided, further, that in determining the applicable interest rate margins for the Initial Term Loans and the ~~Incremental~~ New Term ~~Loans~~Facilities, (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 ~~such~~ the Initial Term Loans or any ~~Incremental~~ New Term ~~Loan~~ Facilities 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 fees payable in connection with the ~~Incremental~~ New Term ~~Loans~~ Facilities that are not shared with all Additional Lenders providing such ~~Incremental~~ New Term ~~Loans~~ Facilities shall be excluded; (C) any amendments to the Applicable ~~Margin~~ Rate on ~~any~~ the Initial Term Loans that became effective subsequent to the ~~FifthSixth Amendment~~ Effective Date but prior to the time of such ~~Incremental~~ New Term ~~Loans~~ Facilities shall also be included in such calculations and (D) if the ~~Incremental~~ New Term ~~Loans~~ Facilities include an interest rate floor greater than the interest rate floor applicable to ~~such~~ 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~~ Rate for ~~such~~ the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for ~~such~~ 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~~Rate) applicable to ~~such~~ the Initial Term Loans set forth in the last sentence of the definition of Eurodollar Rate and Base Rate, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of ~~the~~ Additional Lenders in any required vote or action of the Required ~~Lenders, Supermajority~~ Lenders or of the Lenders of each Tranche ~~hereunder,~~ hereunder and (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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, the terms and documentation governing the existing Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Syniverse Holdings Inc)

Incremental Facilities. (a) So long as no Event of Default under ~~subsection 8(a~~Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower shall have the ~~right~~right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), 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”), (ii) to increase the ~~loans in any Tranche~~ Existing Term Loans by requesting new term loan commitments to be added to an ~~existing~~ 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 Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after the FourthSixth Amendment Effective Date,~~ (i) the aggregate ~~principal~~ amount of Incremental Commitments permitted pursuant to this ~~subsection 2.5 is limited~~Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes ~~effective,~~ effective (and after giving effect to ~~(A)~~ the ~~aggregate principal amount (not less than zero)~~ Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that ~~is permitted to~~ could then be Incurred under ~~subsection 7.1(b)(xiv)(i~~this Agreement in compliance with Subsection 8.1(b)(i) ~~by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million~~ and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on ~~subsection 7.1(b)(xiv)(i)~~clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of 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~~test). 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 ~~under anythe Term Loan Facility~~ made available pursuant to this ~~subsection 2.5~~ Subsection 2.8 shall be in a minimum aggregate amount of at least $~~15,000,000~~ 10,000,000 and in integral multiples of $~~1,000,000~~ 5,000,000 in excess ~~thereof~~thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $10,000,000 if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) Each request from the Borrower pursuant to this ~~subsection 2.5~~ 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 other financial institution (any such ~~existing Lender and any such~~ other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”)~~, provided,~~ ; provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender ~~hereunder~~hereunder or an Approved Fund, to the consent of the Administrative Agent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and the consent of any swingline lender or issuing lender, as the case may be, that may then~~ shall be required ~~pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed)~~ (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of ~~subsection 10.6(h~~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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. (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 O I-1 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional ~~Lender that is not an existing~~ Incremental Lender substantially in the form attached hereto as Exhibit P I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (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 Incremental Lender shall be a ~~Lender,~~ 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. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan ~~under~~ Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable ~~Tranche~~Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, ~~for all intents~~ in the opinion of the Borrower and ~~purposes~~ the Administrative Agent, to effect the provisions of this ~~Agreement~~Subsection 2.8(c). (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, an Escrow Borrower (if applicable) and each ~~Additional~~ applicable Incremental 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 ~~subsection 2.5,~~ Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary ~~Guarantors~~Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and (other than with respect to proceeds of such Incremental Commitments which are subject to an escrow or other similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term ~~Loans~~Loan Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (at the Borrower’s option) will be unsecured), (B) the Incremental Commitments and 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 Term ~~Loans~~ Loan 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~~ Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or ~~other assets~~ similar arrangement and any related deposit of cash, Cash Equivalents and/or Temporary Cash Investments to cover interest and premium in respect of such Incremental Loans) of any Loan Party that do does not also secure the Term ~~Loans~~ Loan Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment ~~provisions that do not also apply~~ from the Net Available 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 ~~applicable~~ extent the Net Available 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 ratable basis with the Initial Term Loans (~~other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior~~ after giving effect to any amendment in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loansaccordance with Subsection 11.1(d)(vi)~~, provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans~~); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) [reserved]; (iv) the maturity date and the weighted average life to maturity of ~~such~~ any 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 ~~B-45 Loans~~ Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, ~~that~~which, subject to customary ~~conditions~~conditions (as determined by the Borrower in good faith, which determination shall be conclusive), 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 ~~of the Term B-45 Loans~~ or the remaining weighted average life to maturity of the Initial Term ~~B-45~~ Loans, as ~~applicable~~applicable or, (2) pursuant to an escrow or similar arrangement with respect to the proceeds of such Incremental Term Loans or (3) of Indebtedness under any Incremental Term Loan Commitments in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any Additional Obligations, any Refinancing Indebtedness and Indebtedness under any Specified Refinancing Term Loan Facility and any applicable Extended Tranche, in each case outstanding under the Earlier Maturity Date Basket) not in excess of the Earlier Maturity Date Basket); (ivv) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental ~~Commitments, and the amortization schedule applicable to any Incremental Term Loans,~~ Commitments shall be determined by the Borrower and the applicable ~~Additional~~ Incremental Lenders; provided ~~that,~~ that in the event that the applicable interest rate margins for any ~~term loans~~ syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the First Lien Obligations, with a Stated Maturity that is earlier than 12 months following the InitialTranche B Term Loan Maturity Date, Incurred by the Borrower ~~under~~ pursuant to the Ratio Incremental Facility, made on or prior to the 12-month anniversary of the Closing DateFirst Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any ~~Incremental Term Loan Commitment~~ acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for ~~any~~ the InitialTranche B Term Loans by more than 50 75 basis points, then the ~~Applicable Margin~~ effective interest rate margin for ~~such~~ the applicable InitialTranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the ~~applicable interest rate margin for such Term Loans~~ Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 75 basis ~~points~~points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); ~~provided~~ provided, further that, in determining the applicable interest rate margins for the applicable InitialTranche B 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 such InitialTranche B Term Loans or any Incremental Term ~~Loan~~ Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such InitialTranche B Term Loans are issued in a manner such that all such InitialTranche B Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of InitialTranche B Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of InitialTranche B Term Loans shall be determined on a weighted average basis); (B) any ~~arrangement,~~ arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are ~~not~~ not(other than, in the case of syndicated Incremental Term Loans, and only if such fees are shared with all Additional Incremental Lenders providing such syndicated Incremental Term ~~Loans shall~~ Loans) shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on ~~any~~ the applicable InitialTranche B Term Loans that became effective subsequent to the ~~FifthSixth~~ ClosingFirst Amendment Effective Date but prior to the effective time of such Incremental Term Loans shall also be included in such ~~calculations and~~ calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to ~~such~~ the applicable InitialTranche 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 such InitialTranche B Term Loans shall be required, to the extent an increase in the interest rate floor for such InitialTranche 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 such InitialTranche B Term Loans shall be increased by such ~~amount; (v) such Incremental Commitment Amendment may provide (1) for~~ amount to the ~~inclusion, as appropriate, of~~ extent necessary to adjust the ~~Additional Lenders in any required vote or action of~~ applicable Existing Interest Rate to be equal to the ~~Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder~~applicable Adjusted Interest Rate, (2E) ~~class voting and other class protections for any additional credit facilities, (3) for~~ if the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Incremental Term Loans ~~and weighted average life~~ include an interest rate floor lower than the interest rate floor applicable to ~~maturity~~ the applicable Tranche of ~~such~~ InitialTranche 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, add,~~ or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms agreed by the Borrower, the Administrative Agent and the Lenders providing such Commitments (including do not include any ~~swingline lender or issuing lender); and (vi) the other terms and documentation in respect thereof~~interest rate floor, to the extent ~~not consistent with this Agreement as~~ a reduction in the interest rate floor for such InitialTranche B Term Loans would cause a reduction in the interest rate then in effect ~~prior to giving effect~~ thereunder, an amount equal to the difference between the interest rate floor applicable to the InitialTranche B Term Loans and the interest rate floor applicable to such Incremental ~~Commitment Amendment~~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 InitialTranche B Term Loans would cause a reduction in the interest rate then in effect thereunder, shall ~~otherwise~~ reduce the applicable interest rate margin of the applicable Incremental Term Loans for purposes of determining whether an increase in the Existing Interest Rate shall be ~~reasonably satisfactory~~ required and (F) if the applicable Tranche of InitialTranche B Term Loans includeincludes 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 ~~Borrower.~~Increased Amount; (vi) such Incremental

Appears in 1 contract

Samples: Credit Agreement (Core & Main, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom~~Following the Agreement Date, ~~the Borrower shall have the right, at any time and~~ AGCO may from time to time ~~after~~ through the ~~Closing~~ Maturity Date, propose that (a) term loans in U.S. Dollars or the Equivalent Amount in the requested Offshore Currency be made to it or any of the other Borrowers in accordance with this Section (each, an “Incremental Term Loan”) or (b) the aggregate amount of Revolving Loan Commitments be increased (each an “Incremental Revolving Commitment”) by delivering a Notice of Incremental Facility to the Administrative Agent substantially in the form of Exhibit E hereto (a “Notice of Incremental Facility”), specifying (subject to the restrictions set forth in clause (b) below) therein the (i) ~~to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (~~amount of the “Tranche of Incremental Term ~~Loan~~ Loans or Incremental Revolving Commitments requested (which Tranche shall, unless otherwise approved by the Lenders making such Incremental Term Loans or providing such Incremental Revolving Commitments”, be in a minimum principal amount of $100,000,000 and integral multiples of $50,000,000 in excess thereof (or in each case the Equivalent Amount in the requested Offshore Currency)), (ii) ~~to increase~~ requested closing date of such proposed Incremental Term Loans or Incremental Revolving Commitments (which shall be at least 15 Business Days from the ~~loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche~~ date of ~~Loans (~~delivery of the ~~“Supplemental Term Loan Commitments”~~Notice of Incremental Facility), (iii) ~~to request new commitments under one or more new revolving facilities~~ the interest rate to be ~~included~~ applicable to all Incremental Term Loans in ~~this Agreement (the “Incremental Revolving Commitments”)~~such Tranche, and (iv) ~~to request new letter~~ the amount of ~~credit facility commitments under one~~ any upfront or ~~more new letter of credit facilities~~ closing fees to be ~~included in this Agreement (together with~~ paid by the Borrowers to the Lenders funding such Tranche of Incremental Term ~~Loan Commitments, Supplemental Term Loan Commitments and the~~ Loans or providing such Incremental Revolving Commitments~~, the “Incremental Commitments”), provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount~~ . Each Notice of Incremental ~~Commitments permitted pursuant to this subsection 2.5 is limited, at~~ Facility delivered by AGCO shall be binding upon all Loan Parties. At the time of delivery of the ~~respective~~ Notice of Incremental ~~Commitment becomes effective~~Facility, AGCO shall also deliver to the Administrative Agent a certificate of a Responsible Employee of AGCO certifying (A) ~~the aggregate principal amount (not less than zero) of Indebtedness~~ that ~~is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or~~ AGCO and its ~~Restricted~~ Subsidiaries ~~at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred~~ are in ~~reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, certifying~~ compliance with the financial ~~test~~ covenants set forth in ~~such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ Section 6.10 hereof before and after giving effect to such Incremental ~~Commitment (other than Supplemental~~ Term Loan ~~Commitments) shall be made by creating a new Tranche. Each~~ Borrowing or such Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Revolving Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (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 subsection 2.5, provided, however, that (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisionsfully drawn) on a pro ~~rata~~ forma basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide~~ end of the most recent Fiscal Quarter for ~~an earlier maturity date and/or a shorter average life~~ which financial statements have been delivered to ~~maturity than~~ the ~~Term B-45 Loans~~Lenders, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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~~ that no Default or ~~other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall~~ Event of Default then exists or would be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 Borrowercaused thereby.

Appears in 1 contract

Samples: Credit Agreement (Agco Corp /De)

Incremental Facilities. (a) ~~So long as no Event~~ The Borrower, by written notice to the Administrative Agent, may request (x) the establishment of ~~Default under subsection 8(a) or (f) exists or would arise therefrom,~~ Incremental Revolving Commitments and/or 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 “establishment of Incremental Term ~~Loan Commitments”)~~Commitments (Incremental Term Loans, (ii) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of 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 (together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and the ~~Incremental~~ Revolving ~~Commitments~~Loans made thereunder, collectively, the “Incremental ~~Commitments~~Extensions of Credit”) or (y) to incur Alternative Incremental Facility Debt; provided that the aggregate amount of all Incremental Commitments established hereunder, together with the aggregate principal amount of all Alternative Incremental Facility Debt and the aggregate amount of all Designated Local Facilities (as defined in the Collateral Agreement) that constitute Secured Cash Management Obligations (as defined in the Collateral Agreement), ~~provided that~~shall not exceed the sum of (x) $600,000,000, ~~after the FourthSixth Amendment Effective Date,~~ plus (iy) the aggregate principal amount of all voluntary prepayments of Term Loans and voluntary prepayments of Revolving Loans to the extent accompanied by a permanent reduction of the Revolving Commitments (excluding voluntary prepayments of Incremental ~~Commitments permitted~~ Term Loans and Revolving Loans and accompanying Revolving Commitment reductions, in each case, to the extent obtained pursuant to ~~this subsection 2.5 is limited~~clause (z) below), at in each case, made prior to the ~~time~~ date of the ~~respective~~ applicable Incremental ~~Commitment becomes effective~~Extension of Credit) and not funded with the proceeds of Indebtedness, plus (z) an additional amount, so long as, immediately after giving effect to the incurrence of such additional amount (but without giving effect to any amount incurred simultaneously in reliance on clauses (x) or (y) above) and the application of the proceeds therefrom, but without netting the proceeds thereof (and assuming that (A) the ~~aggregate principal~~ full amount ~~(not less than zero)~~ of ~~Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower~~ such Incremental Extension of Credit or ~~its Restricted Subsidiaries at such time plus~~ Alternative Incremental Facility Debt has been funded, (B) ~~$250 million~~ all Alternative Incremental Facility Debt and each Designated Local Facility designated as Secured Cash Management Obligations constitutes Total First Lien Indebtedness, regardless of whether it satisfies the terms of the definition thereof and (C) assuming that the full amount of all such Designated Local Facilities have been funded), the First Lien Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter, is equal to or less than 1.10 to 1.00. Such notice shall set forth (i) the amount and type of the requested Incremental Commitments and (ii) ~~if any portion~~ the date on which such Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days or more than 60 days after the date of ~~an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i),~~ such notice unless otherwise agreed by the Borrower ~~shall have delivered a certificate to~~ and the Administrative Agent~~, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio~~)~~. 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender~~”), provided~~, if ~~such Additional Lender is~~ not already a Lender ~~hereunder or an Affiliate of a Lender~~ hereunder, shall be subject to the ~~consent~~ approval of the Administrative Agent to the extent such approval would otherwise be required pursuant to Section 9.04 and, in the case of an Incremental Revolving Lender, each Issuing Bank to the extent such approval would otherwise be required pursuant to Section 9.04 (~~such consent~~ which approvals shall not to be unreasonably withheld or delayed) and each Incremental Lender shall execute all such documentation as the ~~consent~~ Administrative Agent shall reasonably specify to evidence its Incremental Commitment and/or its status as a Lender hereunder. No Lender shall be obligated to provide any Incremental Extension of Credit, unless it so agrees. (b) The terms and conditions of any ~~swingline lender~~ Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that the Borrower at its election may pay upfront or ~~issuing lender, as~~ closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the ~~case may~~ other Revolving Commitments. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth in the applicable Incremental Facility Agreement with respect to pricing, amortization and maturity, identical to those of the Term Commitments and the Term Loans (and otherwise shall be on terms and subject to conditions reasonably satisfactory to the Administrative Agent); provided that ~~may~~ (i) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of any Class of Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Latest Maturity Date and (iii) if the Weighted Average Yield relating to any Incremental Term Loans exceeds the Weighted Average Yield relating to the Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Agreement by more than 0.50%, then the Applicable Rate relating to the Tranche B Term Loans shall be adjusted so that the Weighted Average Yield relating to such Incremental Term Loans shall not exceed the Weighted Average Yield relating to the Tranche B Term Loans by more than 0.50%; provided, however, that (x) the requirements set forth in this clause (iii) shall not apply to any Incremental Extensions of Credit the effective date of which is more than 12 months after the Closing Date and (y) any increase in the Applicable Rate required pursuant to ~~subsection 10.6~~ this clause (~~such consent not~~ iii) resulting from the application of any interest rate “floor” on any Incremental Term Loan will be effected solely through the establishment or increase of an interest rate “floor” on the Tranche B Term Loans. Any Incremental Term Commitments established pursuant to ~~be unreasonably withheld or delayed) (it being understood~~ an Incremental Facility Agreement that have identical terms and conditions, and any ~~such Additional Lender that is an Affiliated Lender~~ Incremental Term Loans made thereunder, shall be ~~subject to the provisions~~ designated as a separate series (each a “Series”) of ~~subsection 10.6(h), mutatis mutandis, to the same extent as if such~~ Incremental Term Commitments and ~~related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental~~ Incremental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, Loans for all ~~intents and~~ purposes of this Agreement. (dc) The Incremental Commitments ~~(other than Supplemental Term Loan Commitments)~~ shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become ~~commitments under~~ effective unless (i) on the date of effectiveness thereof, immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the Incremental Lenders providing such Incremental Extension of Credit may agree to customary “limited conditionality” provisions with respect to the condition set forth in this ~~Agreement pursuant~~ clause (i)), (ii) on the date of effectiveness thereof and after giving effect to ~~an amendment (an “Incremental Commitment Amendment”) to this Agreement and~~the making of Loans and issuance of Letters of Credit thereunder, as ~~appropriate~~applicable, to be made on such date, the ~~other~~ representations and warranties of each Loan ~~Documents~~Party set forth in the Loan Documents shall be true and correct in all material respects, ~~executed by~~ 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 true and correct in all material respects with respect to such prior date (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Parent, the Borrower and ~~each Additional Lender~~the Subsidiaries and (y) customary specified acquisition agreement representations and warranties with respect to the Person being acquired), (iii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv) after giving effect to the applicable Incremental Extensions of Credit and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Extension of Credit shall have been funded as Loans on such date), (x) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Parent, does not exceed the Applicable Total Net Leverage Ratio as of such day and (y) the Cash Interest Expense Coverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Parent, is not less than 3.00 to 1.00 (provided that if the proceeds of the applicable Incremental Commitments are to be used to finance a Limited Condition Acquisition, then the condition precedent set forth in this clause (iv) may be required, at the option of the Borrower, to be satisfied as of the date on which the binding agreement for such Limited Condition Acquisition is entered into, rather than as of the date of effectiveness of such Incremental Extension of Credit) and (v) the Parent and the Borrower shall have delivered to the Administrative Agent an officer’s certificate to the effect set forth in clauses (i), (ii), (iii) and (iv) above, together with reasonably detailed calculations demonstrating compliance with the immediately preceding clause (iv) and shall have satisfied all such other conditions (if any) as shall be required pursuant to the applicable Incremental Facility Agreement. An Each Incremental ~~Commitment Amendment~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to give effect to the provisions of this ~~subsection 2.5~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~provided, however, that~~ (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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental ~~Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no~~ Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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~~ be a “Lender” (and a Lender in respect of ~~OID~~Commitments and Loans of the applicable Class) ~~payable by the Borrower to the Lenders under such Term Loans or any Incremental Term Loan in the initial primary syndication thereof~~ hereunder, and henceforth shall be ~~included~~ entitled to all the rights of, and benefits accruing to, Lenders (~~with OID being equated to interest based on an assumed four-year life to maturity); (B~~or Lenders in respect of Commitments and Loans of the applicable Class) ~~any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans~~ hereunder and shall be ~~excluded;~~ bound by all agreements, acknowledgements and other obligations of Lenders (~~C) any amendments to the Applicable Margin on any Term~~ or Lenders in respect of Commitments and Loans ~~that became effective subsequent to the FifthSixth 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 such Term Loans, such increased amount shall be equated to the applicable ~~interest rate margin for purposes of determining whether an increase to~~ Class) hereunder and under the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicableLoan Documents, and (4ii) in the case of an any Incremental Revolving Commitment, ~~add~~(A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the aggregate Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or ~~provide for adjustments to,~~ reduction from time to time as set forth in the definition of the term “~~Agent Default,” “Defaulting Lender” protections~~ Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Commitment, and ~~appropriate modifications~~ the Applicable Revolving Percentage of all the Revolving Lenders, shall automatically be adjusted to ~~subsection 2.7~~ give effect thereto. (e) On the date of effectiveness of any Incremental Revolving Commitments, if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans in accordance with this Agreement, which Revolving Loans shall be made by the Revolving Lenders ratably in accordance with their respective Applicable Revolving Percentage (calculated after giving effect to ~~provide for “amend and extend” mechanics for~~ such Incremental Revolving Commitments) provided that such prepayment of Revolving Loans pursuant to this paragraph shall not be required if such Incremental Revolving Commitments are effected entirely by ratably increasing the Revolving Commitments of the existing Revolving Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.16. (f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and ~~related Obligations)~~of the effectiveness of any Incremental Commitments, in each case ~~on terms agreed by the Borrower, the Administrative Agent and~~ advising the Lenders ~~providing such Commitments (including~~ of the details thereof and, in the case of effectiveness of any ~~swingline lender or issuing lender); and (vi)~~ Incremental Revolving Commitments, of the ~~other terms and documentation in respect thereof, to~~ Applicable Revolving Percentages of the ~~extent not consistent with this Agreement as in effect prior to~~ Revolving Lenders after giving effect thereto and of the prepayments and borrowings required to ~~the Incremental Commitment Amendment, shall otherwise~~ be ~~reasonably satisfactory~~ made pursuant to ~~the Borrower~~Section 2.23(e).

Appears in 1 contract

Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc)

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom~~The Borrower may, ~~the Borrower shall have the right, at~~ any time ~~and~~ or from time to time after the ~~Closing~~ Funding Date, by written notice to the Administrative Agent (ian “Incremental Facility Request”) to request ~~new~~ (x) the establishment of incremental or additional term loan facilities (each, an “Incremental Term Facility”, the commitments ~~under one or more new term loan credit facilities to be included in this Agreement (~~thereunder, the “Incremental Term ~~Loan~~ Commitments~~”), (ii) to increase~~ ” and the loans ~~in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (~~thereunder, the “~~Supplemental~~ Incremental Term ~~Loan Commitments~~Loans”)) and (y) the establishment of incremental or additional revolving loan facilities (each, ~~(iii) to request new~~ an “Incremental Revolving Facility”, the commitments ~~under one or more new revolving facilities to be included in this Agreement (~~thereunder, the “Incremental Revolving Commitments” and the loans thereunder, the “Incremental Revolving Loans”). Any such Incremental Facility may be implemented by increasing the amount of loans and commitments under an existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.20, the Incremental Term Facilities shall be funded or the Incremental Revolving Commitments shall become available on the relevant Increased Amount Date; provided that no Incremental Facility shall be incurred on such date to the extent that the aggregate principal amount of such Incremental Facility when combined with the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred prior to such date exceeds the sum of: (i) the greater of (A) $690,000,000 and (B) 100% of LTM EBITDA (the “Free and Clear Incremental Amount”), plus (ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Revolving Commitments) of the Initial Revolving Loans, Initial Term Loans or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to the date of such incurrence, in each case, so long as an such voluntary prepayment was not funded with the proceeds of Long Term Debt (the “Voluntary Prepayment Amount”), plus (iii) an amount such that, after giving effect to the incurrence of such amount and the use of proceeds thereof, (A) in the case of any Incremental Facility that is secured on a pari passu basis with the Initial Facilities, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.25:1.00, (B) in the case of any Incremental Facility that is secured on a junior basis to the Initial Facilities, the Secured Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.50:1.00 and (ivC) in the case of any Incremental Facility that is unsecured, the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to ~~request new letter~~ Section 5.04, is greater than 2.00:1.00 (provided that the amount of ~~credit facility commitments under one~~ Indebtedness for purposes of such calculation of the First Lien Net Leverage Ratio or ~~more new letter~~ Secured Net Leverage Ratio, as applicable, shall (1) not include any principal amount of ~~credit facilities to be included in this Agreement~~ Incremental Facilities and Incremental Equivalent Debt which is being incurred simultaneously or substantially simultaneously by utilizing the Free and Clear Incremental Amount and (~~together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and~~ 2) assume the Incremental Revolving Commitments, if applicable, are fully drawn) (the “Incurrence-Based Incremental Amount”, and together with the Free and Clear Incremental Amount and the Voluntary Prepayment Amount, the “Incremental ~~Commitments~~Availability Amount”)~~, provided that, after~~ . The Borrower may elect to incur any Incremental Facility or Incremental Equivalent Debt by utilizing the ~~FourthSixth Amendment Effective Date, (i) the aggregate principal amount of~~ Incurrence-Based Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i)Amount, the ~~Borrower~~ Free and Clear Incremental Amount, the Voluntary Prepayment Amount, or any combination thereof. For purposes of the forgoing incurrence test, it is understood and agreed that the proceeds of the applicable Incremental Facility shall ~~have delivered a certificate to~~ not be netted against the ~~Administrative Agent~~applicable Indebtedness included in the calculation of the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). 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 under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereofas applicable. (b) Each ~~request~~ such Incremental Facility Request shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and Incremental Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the Incremental Commitments have been allocated, which allocation shall be made at the Borrower’s sole discretion. Any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that the Borrower has no obligation to approach any Lender, and no Lender is committing to provide any Incremental Commitment until such time as such Lender agrees in writing to provide all or a portion of the applicable Incremental Commitment). (c) As of any Increased Amount Date: (i) no Default or Event of Default shall exist and be continuing or would immediately result from the ~~Borrower pursuant~~ incurrence of such Incremental Facility; provided, that solely with respect to ~~this subsection 2.5 shall set forth the requested amount and proposed terms~~ any Incremental Facility incurred in connection with a Limited Condition Acquisition, any Default or Event of ~~the relevant Incremental Commitments. The Incremental Commitments~~ Default (other than a Default or ~~any portion thereof~~Event of Default under Section 7.01(b), (c), (h) or (i)) may be ~~made~~ limited or waived solely for purposes of satisfying this Section 2.20(c)(i) by any existing Lender or by any other bank or financial institution (any such existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the applicable Incremental Lenders without the consent of the Administrative Agent or any other Lender; (ii) the Borrower shall be in compliance with Section 6.11 on a Pro Forma Basis and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2.20(c)(i), this Section 2.20(c)(ii) and Section 2.20(c)(iii); (iii) the representations and warranties of each Loan Party contained in Article III or any other Loan Document shall be true and correct in all material respects (provided, that, solely with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, only the Specified Representations (conformed as necessary for such ~~consent not~~ transaction) and customary specified representations contained in the definitive acquisition agreement for such Limited Condition Acquisition shall be required to be ~~unreasonably withheld or delayed)~~ true and ~~the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed~~correct in all material respects) (~~it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h)~~provided, ~~mutatis mutandis~~that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates); (iv) for any Incremental Facility that increases the Loans and/or Commitments under an existing Term Loan Facility or existing Revolving Facility, as applicable, all terms thereof shall be on the same ~~extent~~ terms of such existing Term Loan Facility or existing Revolving Facility, as if applicable, including with respect to maturity date and interest rates but excluding, unless any such difference in original issue discount or upfront fees would cause any such Incremental ~~Commitments~~ Term Facility to not be fungible with the applicable existing Term Loans, original issue discount or upfront fees, 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 to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (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, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments same documentation (other than ~~Supplemental~~ any amendment evidencing such Incremental Facility); (v) to the extent that such Incremental Facility is not made as part of any existing Term Loan ~~Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and~~Facility or existing Revolving Facility, as ~~appropriate~~applicable, the ~~other~~ terms and provisions of such Incremental Facility shall be consistent with such existing Term Loan ~~Documents~~Facility or existing Revolving Facility, ~~executed by~~ as applicable, provided, that: (A) the ~~Borrower and each Additional Lender. An~~ interest rates applicable to such Incremental ~~Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents~~ Facility shall be as ~~may be necessary or appropriate, in the opinion of~~ agreed between the Borrower and the ~~Administrative Agent~~applicable Incremental Lenders providing such Incremental Commitments; provided that if the All-In Yield applicable to any Incremental Term Facility or any Incremental Equivalent Debt incurred in the form of term loans, in each case that is (x) incurred on or prior to ~~effect~~ the ~~provisions of this subsection 2.5, provided, however,~~ date that is twelve (i12) months after the Funding Date and (Ay) ~~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~~ basis with the ~~Borrower’s option) junior basis by the same Collateral securing the~~ Initial Term ~~Loans~~Facility, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be ~~subject to junior prepayment provisions)~~ more than 0.50% per annum higher than the corresponding All-In Yield on ~~a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting~~ the Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments shall be no earlier than or shorter than, Facility as ~~the case may be, the Maturity Date or the weighted average life to maturity~~ of the ~~Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity~~ date ~~and/or a shorter average life to maturity than~~ of incurrence, then the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins All-In Yield applicable to the ~~loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental~~ Initial Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans Facility shall be increased to cause the ~~extent necessary so that~~ then applicable All-In Yield of the Initial Term Facility to equal the All-In Yield then applicable ~~interest rate margin for such Term Loans is equal~~ to ~~the applicable interest rate margins for~~ such Incremental Term ~~Loan Commitment~~ Facility minus ~~50 basis points~~0.50% per annum (this provision, the “MFN Protection”); provided further that, in determining the applicable interest rate margins for the 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 such Term Loans or that if 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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~~ a Eurodollar Rate floor or ABR floor that is greater than the ~~interest rate~~ Eurodollar Rate floor or ABR floor applicable to ~~such~~ any Initial Term Loans, such ~~increased amount~~ differential between Eurodollar Rate floors or ABR floors, as applicable, shall be ~~equated to~~ included in the ~~applicable interest rate margin~~ calculation of All-In Yield for purposes of ~~determining whether an increase to the Applicable Margin for such Term Loans shall be required,~~ this clause (A) but only to the extent an increase in the ~~interest rate~~ Eurodollar Rate floor ~~for such~~ or ABR floor applicable to the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the ~~interest rate~~ Eurodollar Rate floor and ABR floor (but not the Applicable Margin) applicable to ~~such~~ the Initial Term Loans shall be increased by to the extent of such ~~amount;~~ differential between Eurodollar Rate floors or ABR floors as the case may be; (vB) ~~such Incremental Commitment Amendment may provide (1) for~~ subject to the ~~inclusion~~Permitted Earlier Maturity Exception, ~~as appropriate, of~~ the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the final maturity date ~~and~~ under (x) any Incremental Term Facility shall not be earlier than the ~~weighted average life to maturity requirements, from the~~ Final Maturity Date of ~~such~~ the Initial Term Facility and (y) any Incremental Revolving Facility shall not be earlier than the Final Maturity Date of the Initial Revolving Facility; (C) subject to the Permitted Earlier Maturity Exception, (x) the amortization requirements for any Incremental Term Facility shall be determined by the Borrower and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments (other than amortization)), and ~~weighted average life to maturity of such Term Loans~~ (y) any Incremental Revolving Facility shall not have any scheduled amortization or mandatory commitment reductions prior to the ~~extended maturity date~~ Final Maturity Date of the Initial Revolving Facility; (D) the Incremental Facility shall rank pari passu or junior in right of payment and of security with the ~~weighted average life~~ Initial Facilities or may be unsecured (and, to ~~maturity~~ the extent such Incremental Facility is secured on a pari passu basis such Incremental Facility shall be subject to the Intercreditor Agreement, to the extent such Incremental Facility is secured by Liens that rank junior in priority to the Liens securing the Obligations under the Initial Facilities, such Incremental Facility shall be subject to the Junior Lien Intercreditor Agreement and, to the extent such Incremental Facility is subordinated in right of payment to the Obligations under the Initial Facilities, such Incremental Facility shall be subject to a subordination agreement reasonably satisfactory to the Administrative Agent); (E) regardless of whether such Incremental Facility is created or incurred under the Loan Documents, such Incremental Term Facility shall not be (x) guaranteed by any Person who is not, or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the Loan Documents; provided, except as otherwise required or expressly permitted by Sections 2.20(c)(v)(A)-(E) above, (w) if the terms of such Incremental Facility are not consistent with the Initial Term ~~Loans~~Facility or the Initial Revolving Facility, as applicable, the terms and provisions shall be reasonably satisfactory to the Administrative Agent unless such terms are (1) added for the benefit of all Lenders (or, in the case of a financial covenant with respect to an Incremental Revolving Facility, the Revolving Lenders) pursuant to an Incremental Amendment or (2) are only applicable to periods after the Final Maturity Date of the Term Loan Facility and (4x) in the case of an any Incremental Revolving ~~Commitment~~Facility, ~~add, or provide~~ (1) the borrowing and repayment (except for ~~adjustments to, the definition~~ (I) payments of ~~“Agent Default,” “Defaulting Lender” protections~~ interest and ~~appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for~~ fees at different rates on Incremental Revolving Commitments (and related ~~Obligations~~outstandings), (II) repayments required upon the maturity date of any Revolving Facility and (III) repayment made in ~~each case~~ connection with a permanent repayment and termination of Revolving Commitments under any Revolving Facility (subject to clause (2) below)) of Revolving Loans after the effective date of such Incremental Revolving Commitments shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, (2) the permanent repayment of Revolving Loans with respect to, and termination of, Revolving Commitments under, any Revolving Facility after the effective date of any such Incremental Revolving Commitments shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities (or, to the extent such Incremental Revolving Commitments are terminated in full and refinanced or replaced with a Refinancing Revolving Facility or Refinancing Debt, on a greater than pro rata basis) and (3) assignments and participations of such Incremental Revolving Commitments and Incremental Revolving Loans in respect thereof shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans at such time; and (vi) the terms ~~agreed~~ of such Incremental Facility shall be effected pursuant to an amendment to this Agreement (an “Incremental Amendment”) executed and delivered by the Borrower, the Administrative Agent and one or more Incremental Lenders; provided, that such Incremental Facility may participate in any mandatory prepayment under Section 2.09(b) hereof on a pro rata basis (or on a basis less than pro rata), but not on a basis that is greater than pro rata. (d) On any Increased Amount Date on which any Incremental Commitment becomes effective or Incremental Loans are funded, subject to the ~~Lenders providing such Commitments (including any swingline lender or issuing lender); and (vi) the other~~ foregoing terms and ~~documentation in respect thereof~~conditions, each Incremental Lender to the extent not ~~consistent~~ already a Lender, shall become a Lender hereunder with ~~this Agreement as in effect prior~~ respect to ~~giving effect to the~~ such Incremental Commitment ~~Amendment~~or Incremental Loan; provided, that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall ~~otherwise~~ be reasonably satisfactory to the Administrative Agent, the L/C Issuers and the Borrower to the extent consent would be required under Section 9.04(b) for an assignment of Commitments or Loans to such Incremental Lender. (e) For purposes of this Agreement, any Incremental Loans shall be deemed to be Loans. Each Incremental Amendment may, without the consent of any 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 2.20.

Appears in 1 contract

Samples: Credit Agreement (DT Midstream, Inc.)

Incremental Facilities. ~~(a) So long as no Event of Default under subsection 8(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) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request ~~new term loan commitments under~~ the establishment of (x) one or more ~~new~~ (A) additional tranches of term ~~loan credit facilities~~ loans or (B) increases (an “Incremental Term Loan Increase”) to ~~be included in this Agreement~~ an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), ) and/or (iiy) to increase the loans in any Tranche by requesting new term loan commitments to be added to an existing Tranche of Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more ~~new revolving facilities to be included~~ increases in ~~this Agreement~~ the Revolving Commitments (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 (~~; together with the Incremental Term Loan Commitments, ~~Supplemental~~ the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $3,000,000,000 and (ii) after the Restatement Effective Date and before the Final Term Loan ~~Commitments and~~ Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental ~~Revolving~~ Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, provided that, after the FourthSixth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~zero) of Indebtedness that~~ 10 Business Days after the date on which such notice is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered ~~a certificate~~ to the Administrative Agent~~, certifying compliance with~~ . The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the ~~financial test set forth in such clause~~ Incremental Commitments; provided that (~~together with calculations demonstrating compliance with such ratio). Any loans made in respect of any~~ i) no Lender will be required to provide such Incremental ~~Commitment~~ Commitment, (ii) any entity providing all or a portion of the Incremental Commitments other than ~~Supplemental Term Loan Commitments) shall be made by creating~~ a new Tranche. Each Incremental Commitment under anythe Term Loan Facility made available pursuant to this subsection 2.5 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institutionLender, an ~~“Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate~~ affiliate of a Lender ~~hereunder~~or an Approved Fund, shall be reasonably acceptable to ~~the consent of~~ the Administrative Agent (with such ~~consent~~ acceptance by the Administrative Agent to not to be unreasonably withheld or delayed) and (iii) any entity providing all or a portion of the ~~consent~~ Incremental Revolving Commitments other than a Lender, an affiliate of ~~any swingline lender~~ a Lender or ~~issuing lender~~an Approved Fund, as shall be reasonably acceptable to each Issuing Lender (with such acceptance by the ~~case may be, that may then be required pursuant~~ Issuing Lenders to ~~subsection 10.6 (such consent~~ not to be unreasonably withheld or delayed). (b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that (~~it being understood that any~~ i) no Default or Event of Default shall have occurred and be continuing on such ~~Additional Lender that is an Affiliated Lender~~ Increased Amount Date before or after giving effect to such Incremental Commitments, (ii) the Borrower shall be ~~subject~~ in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to ~~the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if~~ such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related ~~Obligations~~ Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect 55 of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 50 basis xxxxxx, (xxx) xx xxx final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) and (ii) may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had ~~been obtained by~~ occurred on such ~~Lender by way~~ date of ~~assignment)~~determination. (c) ~~Supplemental Term Loan~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall ~~become commitments under this Agreement pursuant~~ assign to ~~a supplement specifying the Tranche to be increased~~each Person with an Incremental Revolving Commitment (each, ~~executed by the Borrower~~ an “Incremental Revolving Lender”) and each ~~increasing Lender substantially~~ of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the ~~form attached hereto~~ Revolving Loans outstanding on such Increased Amount Date as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be ~~delivered~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent for recording in~~ addition of such Incremental Revolving Commitments to the ~~Register. Upon effectiveness of the Lender Joinder Agreement~~ Revolving Commitments, (y) each ~~Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan~~ Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan ~~under the applicable Tranche~~made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all ~~intents~~ purposes, a Revolving Loan and ~~purposes~~ (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of ~~this Agreement~~the Incremental Revolving Loans and Incremental Revolving Commitments shall be substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility. (d) On any Increased Amount Date on which any Incremental ~~Commitments (other than Supplemental~~ Term Loan ~~Commitments~~Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall ~~become commitments under this Agreement pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an “Incremental ~~Commitment Amendment~~Term Loan”) in an amount equal to ~~this Agreement and~~its Incremental Term Loan Commitment, ~~as appropriate~~and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~other Loan Documents~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~executed by~~ and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the ~~Borrower~~ Incremental Synthetic L/C Commitment and ~~each Additional Lender. An~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment ~~Amendment~~ Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any~~ this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the ~~Borrower and the~~ Administrative Agent, to effect the provisions of this ~~subsection 2.5~~Section 2.23. For the avoidance of doubt, ~~provided, however, that~~ (i) ~~(A)~~ the Tranche A Term Loans constitute 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 Tranche A Term Loans, (Bii) the ~~Incremental Commitments and 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~~ 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than constitute Incremental Term ~~Loans secured on a junior basis by the Collateral or ranking junior in right of payment~~Loans, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; and (iii) the ~~maturity date and the weighted average life to maturity of such Incremental Commitments~~ Tranche A Term Lenders 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such 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 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 such 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 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; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each ~~case only to extend the maturity date~~ case, for all purposes of this Agreement and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms 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 BorrowerLoan Documents.

Appears in 1 contract

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

Incremental Facilities. (a) ~~So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the~~ The Borrower ~~shall have the right,~~ may at any time ~~and~~ or from time to time after the ~~Closing~~ Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) ~~to request new term loan commitments under~~ one or more new term ~~loan credit facilities to~~ loans which may be ~~included in this Agreement~~ the same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the Tranche B Term Loans and Tranche B-1 Term Loans), the “Incremental Term ~~Loan Commitments~~Loans”), (ii) ~~to increase~~ one or more increases in the ~~loans in~~ amount of the Revolving Credit Commitments of any ~~Tranche by requesting new term loan~~ Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments ~~to be added to an existing Tranche of Loans~~ (the “~~Supplemental Term Loan~~ Additional/Replacement Revolving Credit 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 (~~together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan ~~Commitments~~Facility and Tranche B-1 Term Loan Facility, ~~Supplemental~~ and the Tranche B Term Loan Commitments and the Tranche B-1 Term Loan Commitments, respectively)); provided that: 104 (i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving ~~Commitments, the “Incremental Commitments”~~Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, ~~after~~ with respect to any Incremental Agreement the ~~FourthSixth Amendment Effective Date~~primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate ~~principal amount of~~ Incremental Commitments ~~permitted pursuant~~ under such Incremental Agreement (other than with respect to ~~this subsection 2.5 is limited~~the absence of any Event of Default under Section 11.1 or Section 11.5, ~~at the time the respective~~ which requirement may not be waived by such Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and Lenders); and (ii) if after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any ~~portion of an Incremental Commitment is~~ Specified Transaction to be ~~incurred~~ consummated in ~~reliance on subsection 7.1(b)(xiv)(i~~connection therewith), the Borrower ~~shall have delivered~~ and the Restricted Subsidiaries would be in compliance on a ~~certificate~~ Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the ~~Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect~~ incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (~~other than Supplemental~~ and any related transactions had occurred) on the first day of such Test Period. (b) Each tranche of Incremental Term ~~Loan Commitments) shall be made by creating a new Tranche. Each~~ Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment ~~under anythe Term Loan Facility made available pursuant to this subsection 2.5~~ Increase shall be in ~~a minimum~~ an aggregate principal amount ~~of at least~~ that is not less than $~~15,000,000~~ 5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in ~~integral multiples~~ minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and 105 without regard to whether an Event of Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m). (bc) (i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Tranche B-1 Term Loans, (II) shall not mature earlier than the Tranche B-1 Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Tranche B-1 Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided, however, that if the Effective Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Tranche B-1 Term Loans as of the date of funding thereof and established on or prior to the Tranche B-1 Term Loan Maturity Date exceeds the Effective Yield in respect of the Tranche B-1 Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Tranche B-1 Term Loans is equal to the Effective Yield of the Incremental Term Loans minus 0.50%; provided, further, to the extent that any change in the Effective Yield of the Tranche B-1 Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Effective Yield in the Tranche B-1 Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Tranche B-1 Term Loans and (V) may otherwise have terms and conditions different from those of the Tranche B-1 Term Loans; provided that (except with respect to matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent. 106 (i) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility. (ii) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts and prepayment premiums as determined by the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (v) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above) any differences shall be reasonably satisfactory to the Administrative Agent. (d) Each ~~request~~ notice from the Borrower pursuant to this ~~subsection 2.5~~ Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. ~~The~~ Incremental ~~Commitments (or any portion thereof)~~ Term Loans may be ~~made~~ made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with an Revolving Credit Commitment will have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other ~~bank~~ bank, financial institution, other institutional lender or ~~financial institution~~ other investor (any such ~~existing Lender and any such bank~~ other bank, financial institution or other ~~financial institution,~~ investor being called an “Additional Lender”)~~, provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of~~ ; provided that (i) the Administrative Agent shall have consented (~~such consent~~ not to be unreasonably ~~withheld~~ withheld) to such Lender’s or ~~delayed~~Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) ~~and the consent~~ for an assignment of ~~any swingline lender~~ Loans or ~~issuing lender~~Commitments, as ~~the case may be~~applicable, ~~that may then be required pursuant~~ to ~~subsection 10.6~~ such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each Swingline Lender and each Letter of Credit Issuer shall have consented (~~such consent~~ not to be unreasonably ~~withheld or delayed~~withheld) ~~(it being understood that any~~ to such Additional ~~Lender that is~~ Xxxxxx’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an ~~Affiliated Lender shall be subject to the provisions~~ assignment of ~~subsection 10.6(h)~~Loans or Commitments, ~~mutatis mutandis~~as applicable, to ~~the same extent as if such Incremental Commitments and related Obligations had been obtained by~~ such Lender ~~by way of assignment).~~or Additional Lender. 107 (ce) ~~Supplemental~~ Commitments in respect of Incremental Term ~~Loan~~ Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become ~~commitments under this Agreement pursuant to a supplement specifying~~ Commitments (or in the ~~Tranche~~ case of an Incremental Revolving Credit Commitment Increase to be ~~increased, executed~~ provided by ~~the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not~~ an existing Lender ~~substantially~~ with a Revolving Credit Commitment, an increase in the form attached hereto as Exhibit P (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 such Lender~~, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the~~ ’s applicable ~~Tranche, for all intents and purposes of this Agreement. (d~~Revolving Credit Commitment) ~~Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments~~ under this Agreement pursuant to an amendment (an “Incremental ~~Commitment Amendment~~Agreement”) to this Agreement and, as appropriate, the other ~~Loan~~ Credit Documents, executed by Holdings, the ~~Borrower and~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An The Incremental ~~Commitment Amendment~~ Agreement may, subject to Section 2.14(c), without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~any Loan~~ this Agreement and the other Credit Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of the ~~Borrower~~ Administrative Agent and the ~~Administrative Agent~~Borrower, to effect the provisions of this ~~subsection 2.5, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary~~ Section. The effectiveness 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 Term Loans, (B) the Incremental Commitments and 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 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 Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Agreement shall be subject to ~~junior prepayment provisions)~~ the satisfaction on ~~a pro rata basis~~ the date thereof (~~or otherwise provide for more favorable prepayment treatment for such Term Loans than such~~ each, an “Incremental ~~Loans)~~Facility Closing Date” (including the Second Amendment Effective Date, ~~provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than~~ the ~~applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii)~~ Fourth Amendment Effective Date and, the ~~maturity date~~ Fifth Amendment Effective Date and the weighted average life to maturity of such Incremental 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 Term B-45 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-45 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, 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 Maturity Date of the Term B-45 Loans or the weighted average life to maturity of the Term B-45 Loans, as applicableSeventh Amendment Effective Date)~~; (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments~~), and the ~~amortization schedule applicable~~ occurrence of any Credit Events pursuant to ~~any~~ such Incremental ~~Term Loans~~Agreement, shall be determined by the Borrower and the 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 any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased subject to the ~~extent necessary so that~~ satisfaction of such conditions as the ~~applicable interest rate margin for such Term Loans is equal to~~ parties thereto shall agree. The Borrower will use 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 Term Loans and~~ proceeds of the Incremental Term Loans, ~~(A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu~~ Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of ~~OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Term Loans or~~ any Incremental Term ~~Loan~~ Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the ~~initial primary syndication thereof~~ proviso to Section 2.14(b), shall be ~~included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable~~ used in ~~connection~~ accordance with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FifthSixth 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 such 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 such Term Loans shall be required, to the extent an increase in the interest rate floor for such 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 such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or action of the Required Lenders, Supermajority 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 Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such 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, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms ~~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~~.

Appears in 1 contract

Samples: Seventh Amendment (LPL Financial Holdings Inc.)

Common use of Incremental Facilities Clause in Contracts