Incremental Facilities. The Borrower may from time to time elect to increase the Revolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 2 contracts
Samples: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or make additional any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increased and/or additional Revolving Commitmentsnew Class or increase, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, Amount. Such notice shall set forth (i) the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of Term Loans and/or Incremental Revolving Commitments being requested (I) the sum of which shall be (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior with respect to the incurrence of such Incremental FacilityFacilities denominated in Dollars, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the in an aggregate principal amount of Indebtedness outstanding pursuant not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Section 6.03(iIncremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) hereof at such time (this clause (I), equal to the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawnrequested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, terminate incremental revolving commitments on a pro forma basis, rata basis or less than a pro rata basis (but not greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to pro rata basis) with the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 2 contracts
Samples: Credit Agreement (Coty Inc.), Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)77 Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the applicable Borrower shall be deemed to have utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (Ibeing so reclassified), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the “Fixed Loans in respect of any Incremental Incurrence Basket”Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of Liens on the Collateral securing such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the use other Loan Documents, (iv) the Incremental Term Loans in respect of proceeds thereunder, any Incremental Term Facility will be entitled to prepayments on the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such same basis as the Term B Loans unless the applicable Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio Activation Notice specifies a lesser treatment, (other than, v) except in the case of such unsecured indebtedness, a bridge loan the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this Agreement from and after clause (v), such Incremental Term Loans shall have a final maturity no earlier than the date Latest Maturity Date of effectiveness the Term B Facility (determined immediately prior to incurrence of such Incremental Facility Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (IIvi), the “Ratio Based weighted average life to maturity of such Incremental Incurrence Basket”Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 50 xxxxx xxxxxx, (xxxx) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and documentation of any Incremental Term Facility are not consistent with the terms and documentation of the Term B Facility, they shall be reasonably satisfactory to the Administrative Agent and (ix) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). For the avoidance of doubt, No Lender shall have any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required Facility unless it agrees to be an Increasing Lender), which agree to participate do so in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilityits sole discretion.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may from time by written notice to time the Administrative Agent elect to increase request the establishment of one or more (x) additional tranches of term loans denominated in Dollars or Canadian Dollars (the commitments thereunder, the “Incremental Term Loan Commitments”) and/or (y) increases in Canadian Revolving Commitments or make additional North American Revolving Commitments (such increased and/or additional Revolving Commitments, an the “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving LoansCommitments” and, together with the Incremental Revolving Term Loan Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicableLoan Commitments”), by an aggregate amount not in each case in minimum increments excess of $10,000,000 so long as150,000,000 (plus (A) the amount, after giving effect theretoup to a further $250,000,000, by which the Term Loans are voluntarily prepaid in accordance with Section 2.12 and (B) the amount, up to a further $75,000,000, by which the Revolving Commitments are permanently reduced in accordance with Section 2.11) in the aggregate and not less than $25,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent, acting reasonably, or (y) shall constitute the difference between $150,000,000 (plus (A) the amount, up to a further $250,000,000, by which the Term Loans are voluntarily prepaid in accordance with Section 2.12 and (B) the amount, up to a further $75,000,000, by which the Revolving Commitments are permanently reduced in accordance with Section 2.11) and the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans Loan Commitments obtained on or prior to such date). Each such notice shall specify the incurrence of such Incremental Facilitydate (each, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the an “Fixed Incremental Incurrence BasketIncreased Amount Date”) and (II) any additional amounts so long as immediately after giving pro forma effect to on which the establishment of such Borrower proposes that the Incremental Facility (and assuming any such Incremental Revolving Loan Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may effective, which shall be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and a date not less than ten Business Days after the date of effectiveness of on which such Incremental Facility (this clause (II), notice is delivered to the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such timeAdministrative Agent. The Borrower may arrange for approach any such increase Lender or tranche to be provided by one any Person (other than a natural person, the Borrower or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval affiliate of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentationBorrower) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility Loan Commitments; provided, that (including Augmenting Lenders i) 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 Increasing Lenders(ii) and any Lender or other Person providing all or a portion of the Incremental Loan Commitments shall be reasonably acceptable to the Administrative Agents Agent and, if providing Incremental Revolving Commitments, each Issuing Lender. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (and subject i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Amendment being reasonably satisfactory to Loan Commitments; (ii) each of the Administrative Agent) representations and no consent of warranties made by any Lender (other than the Lenders participating Loan Party in the Incremental Facility) shall be required for the establishment of any Incremental Facility or pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents shall be true and correct in connection therewith) shall become effective all material respects on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness as of such Incremental Facility, the conditions set forth in paragraphs Increased Amount Date as if made on and as of such date; (aiii) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such the making of any Incremental Facility Term Loans or waived by the Required Lenders and Incremental Revolving Loans, each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made conditions set forth in connection with such Incremental Facility Section 6.2 shall be limited to satisfied; (iv) Holdings and its Subsidiaries shall be in compliance with the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered financial covenants set forth in Section 8.1 on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder a pro forma basis after giving effect to such Incremental Facility Loan Commitments and such other documentation the borrowings thereunder; (v) the Incremental Loan Commitments shall be effected pursuant to one or opinions reasonably requested more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the Lenders of Persons providing such Incremental FacilityLoan Commitments; and (vi) the Borrower shall deliver or cause to be delivered any legal opinions (subject to customary qualifications and exclusions) or other documents reasonably requested by Administrative Agent in connection with any such transaction. 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.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the applicable Borrower shall be deemed to have utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (Ibeing so reclassified), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the “Fixed Loans in respect of any Incremental Incurrence Basket”Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of Liens on the Collateral securing such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the use other Loan Documents, (iv) the Incremental Term Loans in respect of proceeds thereunder, any Incremental Term Facility will be entitled to prepayments on the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such same basis as the Term B Loans unless the applicable Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio Activation Notice specifies a lesser treatment, (other than, v) except in the case of such unsecured indebtedness, a bridge loan the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this Agreement from and after clause (v), such Incremental Term Loans shall have a final maturity no earlier than the date Latest Maturity Date of effectiveness the Term B Facility (determined immediately prior to incurrence of such Incremental Facility Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (IIvi), the “Ratio Based weighted average life to maturity of such Incremental Incurrence Basket”Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars incurred on or prior to the date that is six months after the Closing Date (other than in respect of (A) any Incremental Term Facility originally incurred pursuant to the Base Incremental Amount or the Voluntary Prepayment Amount, (B) any Incremental Term Facility that has an outside maturity date more than one year after the maturity date of the Term B Facility and (C) up to $84,000,000 of other Incremental Term Facilities) shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 00 xxxxx xxxxxx, (xxxx) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and documentation of any Incremental Term Facility are not consistent with the terms and documentation of the Term B Facility, they shall be reasonably satisfactory to the Administrative Agent and (ix) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). For the avoidance of doubt, No Lender shall have any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required Facility unless it agrees to be an Increasing Lender), which agree to participate do so in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilityits sole discretion.
Appears in 1 contract
Incremental Facilities. The Borrower Representative may from by written notice to the Administrative Agent at any time to time after the Restatement Date elect to increase request (A) prior to the Revolving Commitments or make additional Commitment Termination Date, an increase to the existing Revolving Commitments (any such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loanincrease, the “Incremental Term Loans,” and together with Revolving Commitments”) and/or (B) the Incremental Revolving Facility hereinafter collectively referred to as establishment of one or more new term loan commitments (the “Incremental Facilities,” as applicableTerm Loan Commitments”), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the by an aggregate amount of all such Incremental Facilities incurred pursuant not to this Section 2.20 does not exceed the sum of (I1) the sum of (x) $450,000,000 1,350,000,000 plus (y) the aggregate amount of all voluntary prepayments of any outstanding Term Loans prior and Revolving Loans pursuant to Section 2.13(a) (to the incurrence extent, in the case of such Incremental Facilityvoluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus Section 2.13(b)), plus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(iRevolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any an additional amounts unlimited amount so long as immediately as, after giving pro forma effect to the establishment incurrence of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and/or Incremental Term Loan Commitments and the use consummation of proceeds any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the First Lien Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio is notwould not exceed 3.00:1.00, on a pro forma basisand, greater in each case, not less than 3.50:1.00 provided that any Indebtedness under $25,000,000 individually (or such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured lesser amount which shall be treated as Consolidated First Lien Debt for purposes of calculating approved by the First Lien Net Leverage Ratio Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 clauses (1) and for all other First Lien Net Leverage Ratio (2) above on such date of determination), and Secured Net Leverage Ratio integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (other thanA) the date (each, in an “Increased Amount Date”) on which the case of such unsecured indebtednessBorrower Representative proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of effectiveness each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower Representative proposes any portion of such Incremental Facility (this clause (II)Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the “Ratio Based Incremental Incurrence Basket”). For the avoidance amounts of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”allocations; provided that no Ineligible Institution the Administrative Agent may elect or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required decline to be an Increasing Lender), which agree to participate in arrange such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and each Administrative Agent and if the Augmenting any Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing approached to provide all or a portion of the Incremental Facility Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that: (including Augmenting Lenders and Increasing Lenders1) and the Administrative Agents (and subject no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Amendment being reasonably satisfactory to the Administrative AgentRevolving Commitments or Incremental Term Loan Commitments, as applicable; (2) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds incurrence of such Incremental Facility are used to consummate a Permitted AcquisitionRevolving 106 NY\6180200.13 Commitments and/or Incremental Term Loan Commitments, each of the representations and warranties required to be made conditions set forth in connection with such Incremental Facility Section 3.02 shall be limited to satisfied; (3) the Specified Representations and (ii) U.S. Borrower shall be in pro forma compliance with each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Facility Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documentation documents (including modifications of Mortgages and title insurance endorsements or opinions policies) as reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Facility.Revolving Commitments or Incremental Term Loan Commitments; provided that, to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other Investment permitted hereunder, with the consent of the Borrower Representative and the applicable Incremental Term Loan Lender(s), clauses (1) and (2) above shall not apply so long as on the date of the incurrence of such Incremental Term Loans, the Specified Representations shall be true and correct in all material respects as of the date of such incurrence except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; (it being understood that to the extent any such representation and warranty is already qualified by materiality or material adverse effect, such representation and warranty will be true and correct in all respects). Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an 107 NY\6180200.13
Appears in 1 contract
Incremental Facilities. (a) The Borrowers (or, any Restricted Subsidiary or Restricted Subsidiaries of any Borrower that is not a Borrower (any such Restricted Subsidiary, an “Additional Borrower”) may) may from time by written notice to time the Administrative Agent elect to request the establishment of one or more new tranches or term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, the “Incremental Term 81 Facility” and any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans” ) and/or request an increase in any Tranche of Revolving Commitments or make additional Revolving Credit Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable”), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the an aggregate amount not in excess of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum greater of (x) $450,000,000 plus 300,000,000 (or a principal amount equal to the Dollar Equivalent of $300,000,000) less any amount of Indebtedness incurred pursuant to Section 8.02(p) and (y) all voluntary prepayments of any outstanding Term Loans prior an unlimited amount if, after giving effect to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunderamount, the First Lien Net Leverage Ratio is not, less than or equal to 4.50:1.00 on a pro forma basisPro Forma Basis (assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, greater whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Facilities are fully drawn) and, in each instance for an amount not less than 3.50:1.00 $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided that, notwithstanding the foregoing or anything to the contrary set forth herein, Incremental Term Loans may be incurred without regard to the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on the date of incurrence to permanently prepay and refinance on a dollar-for-dollar basis Term Loans of any Indebtedness under Tranche selected by the Borrower, and any such Incremental Term Loans (the “Refinancing Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso and Incremental Term Loans may be incurred to permanently prepay and refinance on a dollar-for-dollar basis Term Loans of any Tranche selected by Borrower. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrowers propose that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) (each such Affiliate or other Person, a “New Loan Lender”) to whom the Borrowers propose any portion of such Incremental Facility that ranks junior to be allocated and the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes amounts of calculating the First Lien Net Leverage Ratio to determine such allocations and (iii) whether such Incremental Facility may is to be incurred pursuant an Incremental Term Facility or Incremental Revolving Facility. Such Incremental Facility shall become effective, as of such Increased Amount Date; provided that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; provided, that with respect to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio clause (other thanA), in solely to the case of such unsecured indebtedness, extent the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness proceeds of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket are being or will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche be used to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, finance an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent Investment permitted hereunder and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant agreed to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of lenders providing such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 such condition shall be satisfied that no Event of Default under only Sections 9.01(a), (f) or (g) hereunder shall exist, (B) both before and after giving effect to the making of any such Incremental Facility or waived by Loans, each of the Required Lenders conditions set forth in Section 5.02 shall be satisfied and each all fees and expenses owing in respect of such increase to the Administrative Agent shall and the Lenders have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerbeen paid; provided provided, further that, if (x) with respect to Section 5.02(a), solely to the extent the proceeds of such Incremental Facility are being or will be used to consummate a Permitted Acquisitionfinance an Investment permitted hereunder, such Investment shall only be subject to customary “funds certain provisions”, if agreed to by the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to lenders providing such Incremental Facility and (y) with respect to Section 5.02(b), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance an Investment permitted hereunder and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under only Sections 9.01(a), (f) or (g) hereunder shall exist; (C) any Incremental Facility provided by any New Loan Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent and executed and delivered by the Borrowers and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documentation or opinions documents reasonably requested by the Administrative Agent and the Lenders of in connection with any such Incremental Facilitytransaction.
Appears in 1 contract
Samples: Credit Agreement (Platform Specialty Products Corp)
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the applicable Borrower shall be deemed to have utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (Ibeing so reclassified), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the “Fixed Loans in respect of any Incremental Incurrence Basket”Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of Liens on the Collateral securing such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the use other Loan Documents, (iv) the Incremental Term Loans in respect of proceeds thereunder, any Incremental Term Facility will be entitled to prepayments on the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such same basis as the Term B Loans unless the applicable Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio Activation Notice specifies a lesser treatment, (other than, v) except in the case of such unsecured indebtedness, a bridge loan the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this Agreement from and after clause (v), such Incremental Term Loans shall have a final maturity no earlier than the date Latest Maturity Date of effectiveness the Term B Facility (determined immediately prior to incurrence of such Incremental Facility Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (IIvi), the “Ratio Based weighted average life to maturity of such Incremental Incurrence Basket”Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars incurred on or prior to the date that is six months after the Closing Date (other than in respect of (A) any Incremental Term Facility originally incurred pursuant to the Base Incremental Amount or the Voluntary Prepayment Amount, (B) any Incremental Term Facility that has an outside maturity date more than one year after the maturity date of the Term B Facility and (C) up to $84,000,000 of other Incremental Term Facilities) shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 50 xxxxx xxxxxx, (xxxx) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and documentation of any Incremental Term Facility are not consistent with the terms and documentation of the Term B Facility, they shall be reasonably satisfactory to the Administrative Agent and (ix) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). For the avoidance of doubt, No Lender shall have any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required Facility unless it agrees to be an Increasing Lender), which agree to participate do so in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilityits sole discretion.
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Incremental Facilities. (a) The Initial Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or make additional any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increased and/or additional Revolving Commitmentsnew Class or increase, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, Amount. Such notice shall set forth (i) the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of Term Loans and/or Incremental Revolving Commitments being requested (I) the sum of which shall be (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior with respect to the incurrence of such Incremental FacilityFacilities denominated in Dollars, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the in an aggregate principal amount of Indebtedness outstanding pursuant not less than $10,000,000, and $5,000,000, increments in excess thereof, (y) with respect to Section 6.03(iIncremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000,, and $5,000,000, increments in excess thereof or (z) hereof at such time (this clause (I), equal to the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawnrequested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, terminate incremental revolving commitments on a pro forma basis, rata basis or less than a pro rata basis (but not greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to pro rata basis) with the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Galleria Co.)
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the applicable Borrower shall be deemed to have utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (Ibeing so reclassified), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the “Fixed Loans in respect of any Incremental Incurrence Basket”Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of Liens on the Collateral securing such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the use other Loan Documents, (iv) the Incremental Term Loans in respect of proceeds thereunder, any Incremental Term Facility will be entitled to prepayments on the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such same basis as the Term B Loans unless the applicable Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio Activation Notice specifies a lesser treatment, (other than, v) except in the case of such unsecured indebtedness, a bridge loan the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this Agreement from and after clause (v), such Incremental Term Loans shall have a final maturity no earlier than the date Latest Maturity Date of effectiveness the Term B Facility (determined immediately prior to incurrence of such Incremental Facility Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (IIvi), the “Ratio Based weighted average life to maturity of such Incremental Incurrence Basket”Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 50 basis points, (viii) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and documentation of any Incremental Term Facility are not consistent with the terms and documentation of the Term B Facility, they shall be reasonably satisfactory to the Administrative Agent and (ix) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). For the avoidance of doubt, No Lender shall have any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required Facility unless it agrees to be an Increasing Lender), which agree to participate do so in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilityits sole discretion.
Appears in 1 contract
Incremental Facilities. The Borrower Representative may from by written notice to the Administrative Agent at any time to time after the RestatementSecond Amendment Date elect to increase request (A) prior to the Revolving Commitments or make additional Commitment Termination Date, an increase to the existing Revolving Commitments (any such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loanincrease, the “Incremental Term Loans,” and together with Revolving Commitments”) and/or (B) the Incremental Revolving Facility hereinafter collectively referred to as establishment of one or more new term loan commitments (the “Incremental Facilities,” as applicableTerm Loan Commitments”), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the by an aggregate amount of all such Incremental Facilities incurred pursuant not to this Section 2.20 does not exceed the sum of (I1) the sum of (x) $450,000,000 1,350,000,000 plus (y) the aggregate amount of all voluntary prepayments of any outstanding Term Loans prior and Revolving Loans pursuant to Section 2.13(a) (to the incurrence extent, in the case of such Incremental Facilityvoluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus Section 2.13(b)), plus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(iRevolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any an additional amounts unlimited amount so long as immediately as, after giving pro forma effect to the establishment incurrence of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and/or Incremental Term Loan Commitments and the use consummation of proceeds any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the First Lien Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio is notwould not exceed 3.00:1.00, on a pro forma basisand, greater in each case, not less than 3.50:1.00 provided that any Indebtedness under $25,000,000 individually (or such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured lesser amount which shall be treated as Consolidated First Lien Debt for purposes of calculating approved by the First Lien Net Leverage Ratio Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 clauses (1) and for all (2) above on such date of determination), and integral multiples of $10,000,000 in excess of that amount (it being understood, notwithstanding anything to the contrary set forth herein or in any other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other thanLoan Document, that in 108 no event shall the case of such unsecured indebtedness, Second Amendment Incremental Tranche A Term Loans count against or otherwise reduce the Secured Net Leverage Ratio amount set forth in Section 6.13(asub-clause (1)(x) above, and that the incurrence of the Second Amendment Incremental Tranche A Term Loans shall be deemed permitted by the terms of this Agreement). Each such notice shall specify (A) calculations in this Agreement from and the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of effectiveness each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower Representative proposes any portion of such Incremental Facility (this clause (II)Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the “Ratio Based Incremental Incurrence Basket”). For the avoidance amounts of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”allocations; provided that no Ineligible Institution the Administrative Agent may elect or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required decline to be an Increasing Lender), which agree to participate in arrange such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and each Administrative Agent and if the Augmenting any Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing approached to provide all or a portion of the Incremental Facility Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that: (including Augmenting Lenders and Increasing Lenders1) and the Administrative Agents (and subject no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Amendment being reasonably satisfactory to the Administrative AgentRevolving Commitments or Incremental Term Loan Commitments, as applicable; (2) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds incurrence of such Incremental Facility are used to consummate a Permitted AcquisitionRevolving Commitments and/or Incremental Term Loan Commitments, each of the representations and warranties required to be made conditions set forth in connection with such Incremental Facility Section 3.02 shall be limited to satisfied; (3) the Specified Representations and (ii) U.S. Borrower shall be in pro forma compliance with each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Facility Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documentation documents (including modifications of Mortgages and title insurance endorsements or opinions policies) as reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental FacilityRevolving Commitments or Incremental Term Loan Commitments; provided that, to the extent the proceeds of any Incremental Term Loans are being used to finance a Permitted Acquisition or other Investment permitted hereunder, with the consent of the Borrower Representative and the applicable Incremental Term Loan Lender(s), clauses (1) and (2) above shall not apply so long as on the date of the incurrence of such Incremental Term Loans, the Specified Representations shall be true and correct in all material respects as of the date of such incurrence 109 except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; (it being understood that to the extent any such representation and warranty is already qualified by materiality or material adverse effect, such representation and warranty will be true and correct in all respects). Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. In addition, each Revolving Loan Lender agrees that the Administrative Agent may (subject to the consent of the Borrower Representative) take such additional actions as it deems reasonably necessary to effect the foregoing and such other adjustments to ensure that the U.S. Revolving Exposure, European Revolving Exposure, or Canadian Revolving Exposure, as applicable, is allocated ratably in accordance with the applicable Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the U.S. Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (x) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (y) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, 110 identical to the Tranche BA Term Loans. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans of the same Class. In the case of any Incremental Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche BA Terms Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Tranche BA Term Loans, and (iii) the yield and all other terms applicable to the Incremental Term Loans of each Series shall be determined by the Borrower Representative and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans of any Series (after giving effect to all rate floors and all fees or original issue discount payable to all Incremental Term Loan Lenders with respect to such Incremental Term Loans) made within 126 months after the RestatementSecond Amendment Date, as reasonably determined by the Administrative Agent, shall not be greater than the applicable interest rate (including the Applicable Margin and rate floor) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Tranche BA Term Loans, plus 0.50% per annum unless (i) the interest rate with respect to the Tranche BA Term Loans is increased so as to cause the then applicable interest rate under this Agreement on the Tranche BA Term Loans to be not more than 0.50% less than the yield then applicable to the Incremental Term Loans of such Series (after giving effect to all rate floors and all fees or original issue discount payable to all Incremental Term Loan Lenders with respect to such Incremental Term Loans) and (ii) the interest rate with respect to Tranche A Term Loans is increased by an amount equal to the amount of any increase in the interest rate for Tranche B Term Loans pursuant to clause (i). Any Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments of the same Class without any change in terms, other than any change that is more favorable to the Revolving Lenders and applies equally to all Revolving Loans and Revolving Commitments of the same Class. Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or make additional any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increased and/or additional Revolving Commitmentsnew Class or increase, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans 105 thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, Amount;. Such notice shall set forth (i) the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of Term Loans and/or Incremental Revolving Commitments being requested (I) the sum of which shall be (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior with respect to the incurrence of such Incremental FacilityFacilities denominated in Dollars, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the in an aggregate principal amount of Indebtedness outstanding pursuant not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Section 6.03(iIncremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) hereof at such time (this clause (I), equal to the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawnrequested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, terminate incremental revolving commitments on a pro forma basis, rata basis or less than a pro rata basis (but not greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to pro rata basis) with the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Borrower Company may at any time and from time to time elect time, by delivery to increase the Revolving Commitments or make additional Revolving Commitments Administrative Agent of a written notice signed by a Responsible Officer of the Company, request the addition of a new tranche of term loans (such increased and/or additional Revolving Commitmentsan “Incremental Term Facility”), a new tranche of revolving loans (an “Incremental Revolving CommitmentTranche Facility” and and, together with the loans thereunderIncremental Term Facility, the “Incremental Facilities”), an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving LoansIncrease”), 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 Commitments, an “Increases and the Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanEuro Tranche Increases, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), Increases”) or a combination thereof in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the an aggregate principal amount of for all such Incremental Facilities and Incremental Increases incurred pursuant to this Section 2.20 does after the Effective Date not exceed exceeding, at any time of determination, the sum of (Ii) an amount equal to the sum greater of (xA) $450,000,000 plus 750,000,000 and (yB) all voluntary prepayments 75% of any outstanding Term Loans prior EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b) (the incurrence of such “Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness Fixed Amount Basket”) minus (z) the aggregate principal amount of all additional Indebtedness outstanding issued or incurred pursuant to Section 6.03(isubsection 8.2(e)(i) hereof or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such time (this clause (Iadditional 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), the “Fixed Incremental Incurrence Basket”) and (IIii) any additional amounts so long as immediately 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 establishment 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 effectiveness of the Incremental Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and assuming any such Incremental Revolving Commitments are fully drawn(B) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured Company shall be treated as Consolidated First Lien Debt in Pro Forma Compliance; provided, further, that for purposes of calculating clause (ii) of this sentence and clause (B) in the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other thanproviso immediately above, in the case of such unsecured indebtednessan Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Net Leverage Ratio set forth 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 Section 6.13(a)) calculations in this Agreement from and after effect immediately prior to the date of effectiveness closing of such Incremental Revolving Tranche Facility (this clause (II), or Incremental Increase and for the “Ratio Based Incremental Incurrence Basket”). For purpose of computing the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval usage of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating basket in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, clause (i) on the proposed date of the effectiveness of such Incremental Facilitythis sentence, the conditions set forth aggregate amount of outstanding Incremental Facilities incurred solely in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and reliance on clause (ii) each Administrative Agent of this sentence shall have received documents consistent with those delivered on be disregarded. In calculating the Closing Date as amount of Indebtedness permitted to the corporate power and authority be incurred pursuant to clause (i) or clause (ii) of the Borrower immediately preceding sentence, the Company may elect to borrow hereunder after giving effect 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 incurred such Indebtedness pursuant to clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such Incremental Facility and such other documentation clause (i) or opinions reasonably requested by clause (ii) after the Administrative Agent and the Lenders of such Incremental Facilityincurrence thereof.
Appears in 1 contract
Samples: Credit Agreement (Graphic Packaging International, LLC)
Incremental Facilities. The (a) So long as no Default or Event of Default exists or would arise therefrom, the Borrower may shall have the 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 elect after the Closing Date, (i) to increase the Revolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into request new term loan commitments under one or more tranches of Term A Loans or increase outstanding Term A Loans new term loan credit facilities to be included in this Agreement (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loanthe commitments thereunder, the “Incremental Term Loans,” Loan Commitments”, and each, a “New Term Facility”) and (ii) to increase the existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”, and together with the Incremental Revolving Facility hereinafter collectively referred to as Term Loan Commitments, the “Incremental Facilities,” as applicableCommitments”, and each, an “Incremental Facility”), in each case in minimum increments of $10,000,000 so long as, after giving effect theretoprovided that, the aggregate amount of all such Incremental Facilities incurred Commitments permitted pursuant to this Section 2.20 does 2.14 shall not exceed exceed, at the sum time of (I) Incurrence or establishment of the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such respective Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I)Commitment, the “Fixed Maximum Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment Facilities Amount. Any loans made in respect of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawnCommitment (other than Supplemental Term Loan Commitments) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such made by creating a new Tranche. Each Incremental Facility may be incurred Commitment made available pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender 2.14 shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval a minimum aggregate amount of the Borrower at least $15,000,000 and each Administrative Agent and if the Augmenting Lender is providing all or a portion in integral multiples of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment $5,000,000 in excess thereof (or joinder documentation) to this Agreement (an “Incremental Amendment”), and such lesser amounts as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilitymay agree).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the aggregate principal amount Maximum Incremental Ratio Amount as of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time date (this clause the sum of the amounts in clauses (Ix), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.74
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Incremental Facilities. (a) The Borrower may may, by written notice to the Administrative Agent from time to time elect (i) request the establishment of up to three incremental term loan facilities (each, an “Incremental Term Loan Facility” and collectively, the “Incremental Term Loan Facilities”) in an aggregate amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(e) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their sole discretion and/or (ii) request an increase in the Revolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with all Incremental Term Loan Facilities, the Incremental Revolving Commitments, an “Incremental Revolving FacilityFacilities”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each in an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and aggregate amount not to exceed $50,000,000 and, together with any Incremental Term A LoanLoan Facilities, the “Incremental Term Loans,” and together with not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior Amount and subject to the incurrence terms of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”Sections 3.15(c) and 3.15(e) below from one or more Incremental Revolving Lenders (IIwhich may include any existing Lender) any additional amounts so long as immediately after giving pro forma effect willing to the establishment of such Incremental Facility (and assuming any provide such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunderin their own discretion; provided, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Revolving Lender hereunder, shall be (x) subject to the approval of the Borrower and each Administrative Agent and if (which approval shall not be unreasonably withheld) and, in the Augmenting Lender is providing all or a portion case of an any such Incremental Revolving FacilityLenders, each the Issuing Bank Lender and Swingline Lender(y) an Eligible Assignee. Any Such notice shall set forth (i) the amount of the Incremental Facility Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be established pursuant (1) with respect to an amendment Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or joinder documentation(3) equal to this Agreement the remaining Incremental Amount), (an ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the “Incremental AmendmentIncreased Amount Date”), and as appropriate, (iii) pro forma financial statements demonstrating compliance on a Pro Forma Basis with the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions financial covenants set forth in paragraphs (aSection 7.1 and the requirement set forth in Section 3.15(e)(iv) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by Term Loan Commitments and/or Incremental Revolving Commitments and the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required Loans to be made in connection with such thereunder (without netting any cash proceeds thereof or of any Incremental Term Loan Facility shall be limited for purposes of clause (a) of the definition of Consolidated First Lien Leverage Ratio) and the application of the proceeds therefrom (including by giving pro forma effect to the Specified Representations any permitted Investments financed thereby) as if made and (ii) each Administrative Agent shall have received documents consistent with those delivered applied on the Closing Date as to date of the corporate power and authority most-recent financial statements of the Borrower delivered pursuant to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental FacilitySection 6.1.
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Incremental Facilities. (a) The Parent Borrower may from 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 to time elect to increase of (and after giving effect to) the establishment of any Incremental Revolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect theretoCommitments, the aggregate amount of all such Incremental Facilities incurred Revolving Commitments and Incremental Term Commitments established pursuant to this Section 2.20 does 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 sum greater of (I) the sum of (xA) $450,000,000 plus 300,000,000 and (yB) all voluntary prepayments of any outstanding Term Loans prior an amount such that, after giving effect to the incurrence making of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility Revolving Commitments (and assuming any such Incremental Revolving Commitments are fully drawn) and Incremental Term Loans and the use making of proceeds thereunderany other Indebtedness incurred substantially simultaneously therewith, the First Lien Senior Secured Net Leverage Ratio is notRatio, calculated on a pro forma basis, is no greater than 3.50:1.00 provided 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 Indebtedness under Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Facility Revolving Commitment or Incremental Term Commitment and (y) any Person that ranks junior the Parent Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other thanAdministrative Agent and, in the case of such unsecured indebtednessany proposed Incremental Revolving Lender, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and the Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”Lenders), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Incremental Facilities. (a) The Borrower Company may at any time and from time to time elect time, by delivery to increase the Revolving Commitments or make additional Revolving Commitments Administrative Agent of a written notice signed by a Responsible Officer of the Company (such increased and/or additional Revolving Commitmentswhereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loans (an “Incremental Term Facility”), a new tranche of revolving loans (an “Incremental Revolving CommitmentTranche Facility” and and, together with the loans thereunderIncremental Term Facility, the “Incremental Facilities”), an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving LoansIncrease”), 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 Commitments, an “Increases and the Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanEuro Tranche Increases, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), Increases”) or a combination thereof in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the an aggregate principal amount of for all such Incremental Facilities and Incremental Increases incurred pursuant to this Section 2.20 does after the Effective Date not exceed exceeding, at any time of determination, the sum greater of (I) the sum of (xi) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness 500,000,000 minus (z) the aggregate principal amount of all additional Indebtedness outstanding issued pursuant to Section 6.03(isubsection 8.2(e)(ii) hereof or (e)(iii) outstanding at such the time (this clause (I), of the “Fixed effectiveness of the applicable Incremental Incurrence Basket”) Facility or Incremental Increase and (IIii) any additional amounts so long as immediately 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 establishment incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.25 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 effectiveness of the Incremental Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and assuming any such Incremental Revolving Commitments are fully drawn(B) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured Company shall be treated as Consolidated First Lien Debt in Pro Forma Compliance; provided, further, that for purposes of calculating clause (ii) and clause (B) in the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other thanproviso above, in the case of such unsecured indebtednessan Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Net Leverage Ratio set forth 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 Section 6.13(a)) calculations in this Agreement from and after effect immediately prior to the date of effectiveness closing of such Incremental Revolving Tranche Facility (this clause (II), or Incremental Increase and for the “Ratio Based Incremental Incurrence Basket”). For purpose of computing the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval usage of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating basket in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, clause (i) on the proposed date of the effectiveness of such Incremental Facilitythis sentence, the conditions set forth aggregate amount of outstanding Incremental Facilities incurred solely in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and reliance on clause (ii) each Administrative Agent of this sentence shall have received documents consistent with those delivered on be disregarded. In calculating the Closing Date as amount of Indebtedness permitted to the corporate power and authority be incurred pursuant to clause (i) or clause (ii) of the Borrower immediately preceding sentence, the Company may elect to borrow hereunder after giving effect 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 incurred such Indebtedness pursuant to clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such Incremental Facility and such other documentation clause (i) or opinions reasonably requested by clause (ii) after the Administrative Agent and the Lenders of such Incremental Facilityincurrence thereof.
Appears in 1 contract
Samples: Credit Agreement (Graphic Packaging International, LLC)
Incremental Facilities. (a) The Borrower may from time to time elect on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the Revolving Commitments or make additional existing Revolving Commitments (any such increased increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or additional (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, an the “Incremental Revolving CommitmentNew Commitments” and the loans thereundereach, individually, a “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving FacilityNew Commitment”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case any case, by an amount not in minimum increments excess of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) from and after the Fourth Amendment Closing Date, $450,000,000 360,000,000 in the aggregate plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 6.03(i1.5) hereof at consummated in connection therewith, (1) in the case of loans under such time New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming other than any such Incremental Revolving Commitments Liens that are fully drawn) and the use of proceeds thereunderjunior), the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such Incremental Facility New Commitments secured by Liens that ranks rank junior to the liens Liens on the Collateral securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating Facilities, the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (other than, z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such unsecured indebtednesstime except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Secured Net Leverage Ratio set forth Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more Term Loan Commitments hereunder (or, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Taurus Term Loan Facility”) in Section 6.13(a)an amount not to exceed $400,000,000 in the aggregate; provided that (1) calculations in this Agreement from the proceeds of the Taurus Term Loan Facility may only be used to finance the Taurus Acquisition, (2) the Increased Amount Date with respect to the Taurus Term Loan Facility shall occur on the date of the consummation of the Taurus Acquisition and (3) any establishment and/or incurrence of the Taurus Term Loan Facility shall not decrease the maximum amount of New Commitments available under clause (x) above. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New 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 may be agreed to by the Administrative Agent) and (ii) the identity of effectiveness each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit Lender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such Incremental Facility (this clause (II)New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the “Ratio Based Incremental Incurrence Basket”). For the avoidance amounts of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”allocations; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent (and/or its Affiliates) may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and if the Augmenting any Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing approached to provide all or a portion of the Incremental Facility New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment; provided, further, that, to the extent the consent of any party hereto is required for a proposed assignment under Section 10.4(b)(iii), such consent requirement shall apply to any New Lender under this Section 2.24 as though such New Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments shall become effective as of such Increased Amount Date; provided, that (including Augmenting Lenders i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments (provided that, in connection with any Limited Conditionality Acquisition, it shall only be required that no Event of Default pursuant to Sections 8.1(a), 8.1(b), 8.1(h), 8.1(i) or 8.1(j) shall exist on such Increased Amount Date before or after giving effect to such New Commitments); (ii) the representations and Increasing Lenders) warranties set forth in this Agreement and the Administrative Agents (other Loan Documents shall be true and subject correct as in all material respects of such Increased Amount Date before and after giving effect to such Incremental Amendment being New Commitments (provided that, in connection with any Limited Conditionality Acquisition, only the Specified Representations shall be required to be true and correct in all material respects on such Increased Amount Date before and after giving effect to such New Commitments); (iii) if the New Commitments are permitted to be incurred pursuant to sub-clause (y) of the first sentence of this clause (a), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the First Lien Net Leverage Ratio or Senior Secured Net Leverage Ratio, as applicable, and executed by a Responsible Officer of the Borrower certifying the requirements of such sub-clause (y) have been met; (iv) for each New Lender (other than an existing Lender), the New Commitments shall be effected pursuant to one or more joinder agreements in form and substance reasonably satisfactory to the Administrative Agent) Agent executed and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed delivered by the Borrower, each Administrative Agent such New Lender, and the relevant Increasing Lenders or Augmenting LendersAdministrative Agent, and each Administrative Agent of which shall notify each Lender thereof. Notwithstanding be recorded in the foregoing, no Incremental Facility Register and shall become effective under this paragraph unless, (i) on be subject to the proposed date of the effectiveness of such Incremental Facility, the conditions requirements set forth in paragraphs Section 2.20(g); (av) and the Borrower shall make any payments required, if any, pursuant to Section 2.19 in connection with the New Revolving Commitments; (bvi) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and making of any new Loans, each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerconditions set forth in Section 3.2 shall be satisfied; provided that, if and (vii) the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required Borrower shall deliver or cause to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received delivered any legal opinions or other documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of in connection with any such Incremental Facilitytransaction.
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or make additional any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increased and/or additional Revolving Commitmentsnew Class or increase, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, Amount;. Such notice shall set forth (i) the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of Term Loans and/or Incremental Revolving Commitments being requested (I) the sum of which shall be (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior with respect to the incurrence of such Incremental FacilityFacilities denominated in Dollars, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the in an aggregate principal amount of Indebtedness outstanding pursuant not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Section 6.03(iIncremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) hereof at such time (this clause (I), equal to the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawnrequested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, terminate incremental revolving commitments on a pro forma basis, rata basis or less than a pro rata basis (but not greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to pro rata basis) with the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.
Appears in 1 contract
Samples: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Borrower may from time to time elect on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the Revolving Commitments or make additional existing Revolving Commitments (any such increased increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or additional (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, an the “Incremental Revolving CommitmentNew Commitments” and the loans thereundereach, individually, a “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving FacilityNew Commitment”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case any case, by an amount not in minimum increments excess of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) from and after the Fourth Amendment Closing Date, $450,000,000 360,000,000 in the aggregate plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 6.03(i1.5) hereof at consummated in connection therewith, (1) in the case of loans under such time New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming other than any such Incremental Revolving Commitments Liens that are fully drawn) and the use of proceeds thereunderjunior), the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such Incremental Facility New Commitments secured by Liens that ranks rank junior to the liens Liens on the Collateral securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating Facilities, the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (other than, z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject time except to the approval extent funded with the proceeds of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving FacilityIndebtedness; provided, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”)however, and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding that notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unlessthe Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) on the proposed date of the effectiveness of such Incremental FacilityJune 30, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations 2020 and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to Taurus Special Mandatory Prepayment request the corporate power and authority establishment of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.one or
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new tranches of term facilities and/or increase the Revolving Commitments principal amount of the Term Loans, any Incremental Term Loans or make additional Revolving Commitments any CREDIT AGREEMENT, Page 89 Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such increased new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or additional Revolving Commitments(ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any such tranche of incremental revolving facilities (each, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Facility hereinafter collectively referred Commitments being requested (which shall be (x) with respect to as “Incremental Facilities,” as applicable)Term Loans denominated in dollars, in each case in minimum increments of $10,000,000 so long as15,000,000, after giving effect theretoand with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the aggregate amount Dollar Equivalent of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus 7,500,000, (y) all voluntary prepayments with respect to Incremental Revolving Commitments denominated in dollars, in minimum increments of any outstanding Term Loans prior $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in minimum increments of the incurrence Dollar Equivalent of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus $5,000,000 or (z) equal to the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior requested to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio become effective (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence BasketIncreased Amount Date”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established ) pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental FacilityActivation Notice.
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Incremental Facilities. The Borrower may (a) At any time and from time to time elect time, subject to increase the terms and conditions set forth herein, the Lead Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more increases in the Revolving Commitments or make additional Revolving Credit Commitments (such increased and/or additional Revolving Commitments, an or tranches of term loans in the form of Last Out Tranches in accordance with clause (b) below) (“Incremental Revolving CommitmentCommitments” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together Facilities”); provided, that except in connection with a Limited Condition Transaction consummated with the proceeds of the Last Out Tranche, upon the effectiveness of each Incremental Revolving Facility hereinafter collectively referred Amendment, no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to as “Incremental Facilities,” as applicable)the contrary herein, in each case in minimum increments without the consent of $10,000,000 so long as, after giving effect theretothe Required Lenders, the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does shall not exceed exceed, at any time, the sum of (Ii) the sum greater of (x) $450,000,000 plus 100.0 million and (y) the excess of the Borrowing Base then in effect over the Total Revolving Credit Commitments then in effect plus (ii) the amount of all voluntary optional prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, Revolving Credit Borrowings in accordance with Section 2.9(a) to the extent such prepayments are not funded accompanied by a permanent reduction in the Revolving Credit Commitments in accordance with the proceeds Section 2.7(b), other than in connection with a refinancing of long-term Indebtedness minus (z) the such Revolving Credit Borrowings and termination of Revolving Credit Commitments in accordance with Section 2.18. All Incremental Revolving Commitments shall be in an integral multiple of $1.0 million and in an aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at that is not less than $5.0 million (or in such time (this clause (Ilesser minimum amount agreed by the Administrative Agent); provided, the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of that such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility amount may be incurred pursuant to this Section 2.20 and for less than the applicable minimum amount if such amount represents all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, the remaining availability in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion respect of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental FacilityFacilities.
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Samples: Credit Agreement (Foundation Building Materials, Inc.)
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new tranches of term facilities and/or increase the Revolving Commitments principal amount of the Term Loans, any Incremental Term Loans or make additional Revolving Commitments any Specified Refinancing Term Loans by requesting new term loans commitments to be added to such Loans (any such increased new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or additional Revolving Commitments(ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any such tranche of incremental revolving facilities (each, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans CREDIT AGREEMENT, Page 88 thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Facility hereinafter collectively referred Commitments being requested (which shall be (x) with respect to as “Incremental Facilities,” as applicable)Term Loans denominated in dollars, in each case in minimum increments of $10,000,000 so long as15,000,000, after giving effect theretoand with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the aggregate amount Dollar Equivalent of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus 7,500,000, (y) all voluntary prepayments with respect to Incremental Revolving Commitments denominated in dollars, in minimum increments of any outstanding Term Loans prior $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in minimum increments of the incurrence Dollar Equivalent of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus $5,000,000 or (z) equal to the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed remaining Incremental Incurrence Basket”Amount) and (IIii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior requested to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio become effective (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence BasketIncreased Amount Date”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established ) pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental FacilityActivation Notice.
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Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time elect to agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the Revolving Commitments amount of their Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or make additional Revolving Commitments (such increased and/or additional Revolving Commitmentstranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving CommitmentsCommitments (any such increase, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and , together with any Incremental Term A LoanFacilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilitates involved, (ii) the applicable Incremental Facility Closing Date (which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iii) in the case of Incremental Term Loans,” , (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and together with (z) the Applicable Margin for such Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable)Term Loans; provided, in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, that (i) the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does established on any date shall not exceed the sum of (I) the sum of (x) $450,000,000 an amount equal to the Base Incremental Amount on such date, plus (y) all voluntary prepayments of any outstanding Term Loans prior an additional amount equal to the incurrence of Voluntary Prepayment Amount on such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the applicable Borrower shall be deemed to have utilized amounts under clauses (y) and/or (z) above prior to utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (Ibeing so reclassified), (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (iii) the “Fixed Loans in respect of any Incremental Incurrence Basket”Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of Liens on the Collateral securing such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the use other Loan Documents, (iv) the Incremental Term Loans in respect of proceeds thereunder, any Incremental Term Facility will be entitled to prepayments on the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such same basis as the Term B Loans unless the applicable Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio Activation Notice specifies a lesser treatment, (other than, v) except in the case of such unsecured indebtedness, a bridge loan the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this Agreement from and after clause (v), such Incremental Term Loans shall have a final maturity no earlier than the date Latest Maturity Date of effectiveness the Term B Facility (determined immediately prior to incurrence of such Incremental Facility Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (IIvi), the “Ratio Based weighted average life to maturity of such Incremental Incurrence Basket”Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 00 xxxxx xxxxxx, (xxxx) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and documentation of any Incremental Term Facility are not consistent with the terms and documentation of the Term B Facility, they shall be reasonably satisfactory to the Administrative Agent and (ix) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). For the avoidance of doubt, No Lender shall have any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required Facility unless it agrees to be an Increasing Lender), which agree to participate do so in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facilityits sole discretion.
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Incremental Facilities. (a) The Borrower may may, by written notice to the Administrative Agent from time to time elect (i) request the establishment of up to three incremental term loan facilities (each, an “Incremental Term Loan Facility” and collectively, the “Incremental Term Loan Facilities”) in an aggregate amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(d) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion and/or (ii) request an increase in the Revolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with all Incremental Term Loan Facilities, the Incremental Revolving Commitments, an “Incremental Revolving FacilityFacilities”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each in an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and aggregate amount not to exceed $10,000,000 and, together with any Incremental Term A LoanLoan Facilities, the “Incremental Term Loans,” and together with not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior Amount and subject to the incurrence terms of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Incurrence Basket”Sections 3.15(c) and 3.15(d) below from one or more Incremental Revolving Lenders (IIwhich may include any existing Lender) any additional amounts so long as immediately after giving pro forma effect willing to the establishment of such Incremental Facility (and assuming any provide such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunderin their own discretion; provided, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Borrower and each Administrative Agent and if (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the Augmenting Lender is providing all or a portion amount of an the Incremental Term Loan Commitments and/or Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility Commitments being requested (which shall be established pursuant (1) with respect to an amendment Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or joinder documentation(3) equal to this Agreement the remaining Incremental Amount), (an ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the “Incremental AmendmentIncreased Amount Date”), and as appropriate, (iii) pro forma financial statements demonstrating compliance on a pro forma basis with the other Loan Documents, executed by financial covenant set forth in Section 7.1 (without having regard to whether there are any outstanding Revolving Loans on the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing LendersIncreased Amount Date) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions requirement set forth in paragraphs (aSection 3.15(d)(iv) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by Term Loan Commitments and/or Incremental Revolving Commitments and the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required Loans to be made in connection with such Incremental Facility shall be limited thereunder and the application of the proceeds therefrom (including by giving pro forma effect to the Specified Representations any permitted Investments financed thereby) as if made and (ii) each Administrative Agent shall have received documents consistent with those delivered applied on the Closing Date as to date of the corporate power and authority most-recent financial statements of the Borrower delivered pursuant to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental FacilitySection 6.1.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may from time may, by written notice to time elect the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or make additional any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increased and/or additional Revolving Commitmentsnew Class or increase, an “Incremental Revolving CommitmentFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanLoans, the “Incremental Term Loans,” and together with ”) in an aggregate amount not to exceed the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, Amount. Such notice shall set forth (i) the aggregate amount of all such the Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of Term Loans and/or Incremental Revolving Commitments being requested (I) the sum of which shall be (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the in an aggregate principal amount of Indebtedness outstanding pursuant not less than $10,000,000, and $5,000,000 increments in excess thereof or (y) equal to Section 6.03(i) hereof at such time (this clause (Ithe remaining Incremental Amount), (ii) the “Fixed Incremental Incurrence Basket”) applicable Borrower and (IIiii) any additional amounts so long as immediately after giving pro forma effect to the establishment of date, which shall be a Business Day, on which such Incremental Facility (and assuming any such Term Loans are requested to be made and/or Incremental Revolving Commitments are fully drawnrequested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, terminate incremental revolving commitments on a pro forma basis, rata basis or less than a pro rata basis (but not greater than 3.50:1.00 provided that any Indebtedness under such pro rata basis) with the Revolving Facility. (b) Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders any existing Lender (it being understood each existing Lender so agreeing shall have no obligation to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or any other entities lender (each any such new bank, financial institution or other entity, lender being called an “Augmenting Additional Lender”); provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of each Issuing Bank shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Additional Lender’s providing such Incremental FacilityFacilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
Appears in 1 contract
Incremental Facilities. (a) The Borrower Company may at any time and from time to time elect time, by delivery to increase the Revolving Commitments or make additional Revolving Commitments Administrative Agent of a written notice signed by a Responsible Officer of the Company, request the addition of a new tranche of term loans (such increased and/or additional Revolving Commitmentsan “Incremental Term Facility”), a new tranche of revolving loans (an “Incremental Revolving CommitmentTranche Facility” and and, together with the loans thereunderIncremental Term Facility, the “Incremental Facilities”), an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving LoansIncrease”), 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 Commitments, an “Increases and the Incremental Revolving Facility”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A LoanEuro Tranche Increases, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), Increases”) or a combination thereof in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the an aggregate principal amount of for all such Incremental Facilities and Incremental Increases incurred pursuant to this Section 2.20 does after the Effective Date not exceed exceeding, at any time of determination, the sum of (Ii) an amount equal to the sum greater of (xA) $450,000,000 plus 1,750,000,000 and (yB) all voluntary prepayments 100% of any outstanding Term Loans prior EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b) (the incurrence of such “Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness Fixed Amount Basket”) minus (z) the aggregate principal amount of all additional Indebtedness outstanding issued or incurred pursuant to Section 6.03(isubsection 8.2(e)(i) hereof or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such time (this clause (Iadditional 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), the “Fixed Incremental Incurrence Basket”) and (IIii) any additional amounts so long as immediately 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 establishment 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 effectiveness of the Incremental Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and assuming any such Incremental Revolving Commitments are fully drawn(B) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured Company shall be treated as Consolidated First Lien Debt in Pro Forma Compliance; provided, further, that for purposes of calculating clause (ii) of this sentence and clause (B) in the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other thanproviso immediately above, in the case of such unsecured indebtednessan Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Net Leverage Ratio set forth 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 Section 6.13(a)) calculations in this Agreement from and after effect immediately prior to the date of effectiveness closing of such Incremental Revolving Tranche Facility (this clause (II), or Incremental Increase and for the “Ratio Based Incremental Incurrence Basket”). For purpose of computing the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval usage of the Borrower and each Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating basket in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, clause (i) on the proposed date of the effectiveness of such Incremental Facilitythis sentence, the conditions set forth aggregate amount of outstanding Incremental Facilities incurred solely in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and reliance on clause (ii) each Administrative Agent of this sentence shall have received documents consistent with those delivered on be disregarded. In calculating the Closing Date as amount of Indebtedness permitted to the corporate power and authority be incurred pursuant to clause (i) or clause (ii) of the Borrower immediately preceding sentence, the Company may elect to borrow hereunder after giving effect 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 incurred such Indebtedness pursuant to clause (ii).The Company may not reclassify any Indebtedness incurred pursuant to such Incremental Facility and such other documentation clause (i) or opinions reasonably requested by clause (ii) after the Administrative Agent and the Lenders of such Incremental Facilityincurrence thereof.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may from time to time elect on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent, request (i) an increase to the Revolving Commitments or make additional existing Revolving Commitments (any such increased increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or additional (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, an the “Incremental Revolving CommitmentNew Commitments” and the loans thereundereach, individually, a “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving FacilityNew Commitment”) or enter into one or more tranches of Term A Loans or increase outstanding Term A Loans (each an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in each case any case, by an amount not in minimum increments excess of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental Facilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) from and after the Fourth Amendment Closing Date, $450,000,000 360,000,000 in the aggregate plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 6.03(i1.5) hereof at consummated in connection therewith, (1) in the case of loans under such time New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (this clause (I), the “Fixed Incremental Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming other than any such Incremental Revolving Commitments Liens that are fully drawn) and the use of proceeds thereunderjunior), the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such Incremental Facility New Commitments secured by Liens that ranks rank junior to the liens Liens on the Collateral securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating Facilities, the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (other than, z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such unsecured indebtednesstime except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Secured Net Leverage Ratio set forth Borrower may, at any time following the Fourth Amendment Closing Date and on or prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more Term Loan Commitments hereunder (or, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Taurus Term Loan Facility”) in Section 6.13(a)an amount not to exceed $400,000,000 in the aggregate; provided that (1) calculations in this Agreement from the proceeds of the Taurus Term Loan Facility may only be used to finance the Taurus Acquisition, (2) the Increased Amount Date with respect to the Taurus Term Loan Facility shall occur on the date of the consummation of the Taurus Acquisition and (3) any establishment and/or incurrence of the Taurus Term Loan Facility shall not decrease the maximum amount of New Commitments available under clause (x) above. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New 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 may be agreed to by the Administrative Agent) and (ii) the identity of effectiveness each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, a “New Revolving Credit Lender” or “New Term Loan Lender,” as applicable, and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such Incremental Facility (this clause (II)New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the “Ratio Based Incremental Incurrence Basket”). For the avoidance amounts of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”allocations; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender, shall be subject to the approval of the Borrower and each Administrative Agent (and/or its Affiliates) may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments in its sole discretion and if the Augmenting any Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender agreeing approached to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to such Incremental Amendment being reasonably satisfactory provide a New Revolving Commitment or a New Term Loan Commitment; provided, further, that, to the Administrative Agent) and no extent the consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be party hereto is required for the establishment of a proposed assignment under Section 10.4(b)(iii), such consent requirement shall apply to any Incremental Facility pursuant to New Lender under this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith2.24 as though such New Lender were a proposed assignee under Section 10.4(b)(iii). The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) All New Commitments shall become effective on the date agreed by the Borroweras of such Increased Amount Date; provided, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, that (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility.no
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
