Incremental Facilities. (a) The Parent Borrower may, by written notice to 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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender. (c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan. (d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto. (e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). (f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 2 contracts
Samples: Incremental Assumption Agreement and Refinancing Amendment to Credit Agreement (Coty Inc.), Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Parent Borrower may, by written notice may from time to the Administrative Agent at any time, on one or more occasions, request time elect 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 any Specified Refinancing make additional Revolving Commitments (such increased and/or add one or more new Classes of incremental revolving facilities (any such new Class or increaseadditional Revolving Commitments, an “Incremental Revolving FacilityCommitment” 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 LoansA Loan, the “Incremental Term Loans”) ,” and together with the Incremental Revolving Facility hereinafter collectively referred to as “Incremental Facilities,” as applicable), in an 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 to exceed the Incremental Amount;. Such notice shall set forth sum of (iI) the amount sum of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (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 respect to Incremental Facilities denominated in Dollars, in an the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of not less than $10,000,000Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), and $5,000,000 increments in excess thereof, (y) with respect to the “Fixed Incremental 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) equal to the remaining Incremental AmountIncurrence Basket”) and (iiII) any additional amounts so long as immediately after giving pro forma effect to the date, which shall be a Business Day, on which establishment of such Incremental Term Loans are requested to be made and/or Facility (and assuming any such Incremental Revolving Commitments are requested to become effective (fully drawn) and the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for use of proceeds thereunder, the ability to permanently repay and terminate incremental revolving commitments First Lien Net Leverage Ratio is not, on a pro rata basis or less than a pro rata basis (but not forma basis, greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); 3.50:1.00 provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing any Indebtedness under such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver that ranks junior to the Administrative Agent an Incremental Assumption Agreement and such other documentation as liens securing the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Initial Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided or that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” are unsecured shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated treated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Consolidated First Lien that is not subordinated to the Liens securing the Obligations” 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 therein, regardless in Section 6.13(a)) calculations in this Agreement from and after the date of whether secured or unsecuredeffectiveness 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 (iveach 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 mandatory prepayment Lender (other than scheduled amortization paymentsthe 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.
(a) The proceeds of any Incremental Term Loans will be used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Term Loan A/Revolver Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The terms and provisions of the Incremental Facilities made pursuant hereto shall be as follows:
(i) the terms and provisions of the Incremental Revolving Commitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(ii) the terms and provisions of the Incremental Term Loans and Incremental Revolving Commitments incurred as a separate tranche shall be on terms and provisions as set forth in this Agreement or as otherwise determined by the Borrower and Lenders under such Incremental Facility and set forth in the related Incremental Amendment and reasonably satisfactory to each Administrative Agent; provided that to the extent such terms and provisions are not consistent with the applicable Initial Term Facility or Initial Revolving Facility, as applicable, (other than pricing), they shall be, taken as a whole, on terms no more favorable to the Lenders under such Incremental Facility than the terms and provisions of this Agreement (except for covenants and events of default applicable only to periods after the Latest Maturity Date) existing at the time of incurrence of such Incremental Facility (as determined by the Borrower in its reasonable discretion); provided, further, that:
(A) any such Incremental Revolving Commitments shall mature no earlier than the Revolving Credit Maturity Date;
(B) any Incremental Facility shall be secured by Liens that rank pari passu, or, at the Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Initial Term Loans or shall be unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by Collateral; provided further that, if such Incremental Facility is secured by Liens that rank junior in priority with the Liens securing the Initial Revolving Loans and the Initial Term Loans, or is unsecured, (x) such Incremental Facility shall be a separate tranche from the Initial Revolving Loans or the Initial Term A Loans or the Initial Term B Loans, as applicable; (y) such Incremental Facilities that are secured shall be subject to a Permitted Junior Intercreditor Agreement and (z) such Incremental Facilities shall not have mandatory prepayment provisions (other than related to customary asset sale, event of loss or change of control offers) that could result in prepayments of such debt prior to the Latest Maturity Date;
(C) the maturity date of any Incremental Term Loans shall be made no earlier than the maturity date of the Initial Term B Loans; and the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans; provided, that Incremental Term A Loans may mature earlier than the Initial Term B Loans and have a shorter Weighted Average Life to Maturity than the Initial Term B Loans; provided, however, that no Incremental Term A Loans shall have a shorter Weighted Average Life to Maturity or earlier maturity date than the Initial Term A Loans;
(D) (x) such Incremental Term A Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)) than the Initial Term A Loans in any mandatory prepayment hereunder, (vy) the maturity date or commitment reduction date of any such Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that are secured by Liens that rank pari passu equal in right of payment and security priority with the ObligationsLiens securing the Initial Term B Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term B Loans in any mandatory prepayment hereunder and (z) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any borrowings and prepayments of Revolving Loans hereunder;
(E) the interest rate margins and original issue discount or upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Facility shall be determined by the Borrower and the Lenders under such Incremental Facility; provided that, solely in the case of Incremental Term Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term Loans, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-In Yield in respect of such Incremental Term A Loans is no more than 50 basis points higher than or Incremental Term B Loans exceeds the All-In-In Yield for in respect of the initial then existing Initial Term A Loans or Initial Term B FacilityLoans, (vii) as applicable, by more than 0.50%, the Applicable Rate in respect of the then existing Initial Term A Loans or Initial Term B Loans, as applicable, shall be adjusted so that the All-In Yield in respect of the then existing Initial Term A Loans or Initial Term B Loans, as applicable, is equal to the extent an All-In Yield in respect of such Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, Term A Loans or Incremental Term B Loans minus 0.50% (x“MFN Protection”); and
(F) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) there shall be outstanding hereunder at any one time, no borrower (yother than the Borrower) and no guarantors (other than the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (xGuarantors) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit respect of any Incremental Facility, unless such financial covenant borrower or guarantor is added also for the benefit of (x) an entity organized or formed in the case of any Incremental Term Facility, any thenUnited States and becomes a Co-existing Term Facility Borrower or Subsidiary Guarantor (yas applicable) in under the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood Loan Documents and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as is otherwise reasonably acceptable to the effectiveness of each Incremental Assumption AgreementAdministrative Agents. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, Nothing contained in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03shall constitute, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall otherwise be deemed to refer to the Increased Amount Date)be, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered a commitment on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental Revolving FacilityTerm Loans, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrowerat any time.
Appears in 2 contracts
Samples: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any timeAgent, on one or more occasions, elect to request to (i) add the establishment of 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 the “Incremental New Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term LoansCommitments”) and/or (ii) prior to the latest Revolving Maturity Date at such time, an increase to the principal amount of any Class of Revolving Commitments, any Incremental existing Tranche B Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an the “Incremental New Revolving FacilityCommitments” and, together with any Incremental the New Term FacilityCommitments, the “Incremental FacilitiesNew Commitments”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) 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 Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars), in an aggregate a principal amount of (A) not less than $10,000,00050,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent or that shall constitute the remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a) after giving effect to the aggregate amount of New Commitments established pursuant to this Section 2.24(a) after the Closing Date and prior to such date), and integral multiples of $5,000,000 increments in excess thereof, and (yB) with respect not to Incremental Facilities denominated in an Alternative Currencyexceed, in for all New Commitments established pursuant to this Section 2.24(a), 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“Maximum Incremental Amount”) equal to the remaining Incremental Amountsum of (1) and $750,000,000 plus (ii2) an amount equal to the date, which shall be a Business Day, Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such Incremental Term Loans are requested to be made and/or Incremental Revolving New Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided established multiplied by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”)25%; provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Maximum Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien not less than $1,250,000,000; provided, further, that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Maximum Incremental Term Loans Amount shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that reduced by the applicable Borrower aggregate principal amount of any New Commitments established prior to such date and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date aggregate principal amount of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans Equivalent Debt incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable prior to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of date. Any such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) New Commitments established pursuant to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing DebtSection 2.24(a) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions any restrictions thereon set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions Sections 6.01 and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent)6.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Incremental Facilities. (a) The Parent Borrower may, by written notice to 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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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 (zy) equal to the remaining Incremental Amount), (ii) the applicable Borrower and (iiiii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, Representative may by written notice to the Administrative Agent at any timetime after the RestatementSecond Amendment Date elect to request (A) prior to the Revolving Commitment Termination Date, on one or more occasionsan increase to the existing Revolving Commitments (any such increase, request to the “Incremental Revolving Commitments”) and/or (iB) add the establishment of 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 the “Incremental Term Facility” and any loans made pursuant to an Incremental Term FacilityLoan Commitments”), “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in by an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i1) the sum of (x) $1,350,000,000 plus (y) the aggregate amount of the Incremental all voluntary prepayments of Term Loans and/or and Revolving Loans pursuant to Section 2.13(a) (to the extent, in the case of voluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to Section 2.13(b)), plus (z) the aggregate amount of Revolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) an additional unlimited amount so long as, after giving pro forma effect to the incurrence of such Incremental Revolving Commitments being requested and/or Incremental Term Loan Commitments 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 (which shall be (x) with respect to assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Facilities denominated in DollarsTerm Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, and, in an aggregate principal amount of each case, not less than $10,000,000, and $5,000,000 increments in excess thereof, 25,000,000 individually (y) with respect or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal be incurred pursuant to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or clauses (z) equal to the remaining Incremental Amount1) and (ii2) 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 Loan Document, that in no event shall the Second Amendment Incremental Tranche A Term Loans count against or otherwise reduce the amount set forth in sub-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) the datedate (each, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the an “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any on which the Borrower Representative proposes that the Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a pro rata basis or date not less than a pro rata basis 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (but not greater than pro rata basisB) with the Revolving Facility.
identity of each Lender or other Person that is an Eligible Assignee (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility)each, or by any other lender (any such other lender being called an “Additional Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not may elect or decline to be unreasonably withheld) to such Additional Lender’s providing arrange such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility Revolving Commitments or Incremental Term Loan shall not require the approval of Commitments in its sole discretion and any existing Lender other than any existing Lender providing approached to provide all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities 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 execute become effective as of such Increased Amount Date; provided that: (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments, each of the conditions set forth in Section 3.02 shall be satisfied; (3) the U.S. Borrower shall be in pro forma compliance with each of the 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 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 documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent an Incremental Assumption Agreement in connection with any such transaction; and such other documentation as (7) the Administrative Agent applicable Borrower shall reasonably specify have paid all fees and expenses owing to evidence the Incremental Facilities Agents and the Lenders in respect of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective or Incremental Assumption AgreementTerm Loan Commitments; provided that (i) that, to the final maturity date extent the proceeds of any Incremental Term Loan (x) that is Loans are being used to finance a “term loan A” shall be no earlier than Permitted Acquisition or other Investment permitted hereunder, with the Latest Maturity Date with respect to Term A Loans consent of the Borrower Representative and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any applicable Incremental Term Loan Lender(s), clauses (x1) that is a “term loan A” 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 no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans true and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, correct in each case calculated all material respects as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and incurrence except to the extent so subordinatedsuch representations and warranties specifically relate to an earlier date, the holders in which case such representations and warranties shall have been true and correct in all material respects as of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured earlier date; (it being understood that to the extent any such Indebtedness incurred representation and warranty is already qualified by materiality or material adverse effect, such representation and warranty will be true and correct in reliance all respects). Any Incremental Term Loans made on the Incremental an Increased Amount Date shall be deemed to be designated a separate series (a “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization paymentsSeries”) 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 made on a pro rata basis necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with all then existing Term Loans (Revolving Commitments of the same Class and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the applicable Borrower and the lenders in respect addition of such Incremental Term Loans Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be permitteddeemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, in their sole discretionfor all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to elect the Incremental Revolving Commitment and all matters relating thereto. In addition, each Revolving Loan Lender agrees that the Administrative Agent may (subject to prepay 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 receiveCanadian Revolving Exposure, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) is allocated ratably in accordance with the maturity date or commitment reduction date applicable Revolving Commitments after giving effect to the addition of any such Incremental Revolving Loan shall be no earlier than the Latest Maturity Commitments. On any Increased Amount Date with respect to then existing Revolving Commitments, (vi) with respect to on which any Incremental Term Loans incurred under Loan Commitments of any Series are effective, subject to the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right satisfaction of payment the foregoing terms and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facilityconditions, (viii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no each Incremental Term Loan will be guaranteed by Lender of any Person that is not Series shall make a Subsidiary Loan Party. All terms to the U.S. Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and documentation with respect to (ii) each Incremental Facilities which differ from those 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 under the existing applicable Credit Facility shall be reasonably satisfactory to the of such Series made pursuant thereto. The Administrative Agent (except to shall notify the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after Lenders promptly upon receipt of the Latest Maturity Borrower Representative’s notice of each Increased Amount Date applicable to and in respect thereof (x) in the case Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of any Incremental Term FacilityLoan Commitments and the Incremental Term Loan Lenders of such Series, any then-existing Term Facility or 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, identical to the Tranche BA Term Loans. The terms and provisions of the Incremental Revolving Facility, any then-existing Loans shall be identical to the Revolving Facility or (iii) in Loans of the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in same Class. In the case of any Incremental Term FacilityLoans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any then-existing Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche BA Terms Loans, (ii) the applicable Incremental Term Facility 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 (yincluding 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 case of any interest rate for Tranche B Term Loans pursuant to clause (i). Any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured Loans will be documented solely as an increase shall have to the Revolving Commitments of the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as Class without any change in terms, other than any change that is more favorable to the effectiveness Revolving Lenders and applies equally to all Revolving Loans and Revolving Commitments of each Incremental Assumption Agreementthe same Class. Each of Joinder Agreement may, without the parties hereto hereby agrees that, upon the effectiveness consent of any Lender other than the applicable Incremental Assumption AgreementRevolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement shall and the other Loan Documents as may be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto2.24.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Samples: Credit Agreement (PVH Corp. /De/)
Incremental Facilities. The Facilities Documentation will permit the Borrower or any Subsidiary Guarantor (aas defined below) The Parent Borrower may, by written notice to 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 incremental term loan commitments facilities under the Facilities Documentation or to be added to such Loans increase any existing term loan facility (any such new Class or increaseeach, an “Incremental Term Facility” and the loans under any loans made pursuant to an Incremental Term Facility, the “Incremental Term Loans”) and/or (ii) increase any of the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Increase”) and/or add one or more incremental revolving credit facility tranches (each an “Incremental Revolving Facility” ”; the Incremental Term Facilities, the Incremental Revolving Increases and the Incremental Revolving Facilities (and, together with any Incremental Term Facilityin each case, the commitments in respect thereof) are collectively referred to as “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth sum of (iA) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect the greater of (1) $144 million and (2) 100% of Consolidated EBITDA (to be defined as provided under “Financial Definitions” below) for the last four fiscal quarters of the Borrower for which financial statements are available (such greater amount, the “Incremental Facilities denominated in Dollars, in an aggregate principal amount of not Starter Amount”) less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an the 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
Equivalent Debt (das defined below) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the equivalent threshold as set forth in this clause (A) plus (B) all voluntary prepayments of the Term Loan Facility and Incremental Amount Equivalent Debt that is secured on an equal priority basis with the Term Loan Facility (including all repayments or purchases made at a discount to par (in an amount equal to the principal amount of such repayment)) and voluntary prepayments of Revolving Loans to the extent accompanied by a permanent reduction of the Revolving Commitments thereunder, in each case, made prior to such date of incurrence and not funded with the proceeds of long-term debt plus (C) an amount equal to the amount of indebtedness that is permitted to be incurred in reliance on the General Debt Basket (as defined below) (this clause (C), the “General Debt Basket Incremental Component”) plus (D) an additional amount such that, after giving effect to the incurrence of any such Incremental Facility pursuant to this clause (D) (which shall assume that all such indebtedness was secured on a first lien basis, whether or not so secured, and which shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to include the Liens securing the Obligations” for purposes full amount of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured any Incremental Revolving Increase or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except Revolving Facility assuming that the applicable Borrower and the lenders in respect full amount of such increase or Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receiveRevolving Facility, as applicable, had been drawn, and after giving effect to any prepayments on a less than acquisition consummated concurrently therewith and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro rata basis forma adjustment events, including any debt incurrence (but not on a greater than pro rata basiswithout giving effect to any amount incurred simultaneously under either (1) clause (A), (vB) or (C) above or (2) the maturity date Revolving Facility) or commitment reduction retirement subsequent to the end of the applicable test period and on or prior to the date of any Incremental Revolving Loan shall such incurrence, all to be no earlier than further defined in the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis pointsFacilities Documentation), the Applicable Rate for the initial Term B Facility shall Borrower would be increased in compliance, on a pro forma basis (and without netting any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect cash proceeds of such Incremental Term Loans is no more incurrence), with a First Lien Leverage Ratio (to be defined as provided under “Financial Definitions” below) (recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) equal to or less than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, either (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, 5.50:1.00 or (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect First Lien Leverage Ratio immediately prior to the Loans under incurrence of such Incremental Facility (this clause (D), the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent “Leverage Based Incremental Amount”); provided that: (i) no event of default (except in connection with permitted by clauses (iacquisitions or other investments, where no payment or bankruptcy event of default will be the standard) through (vii) above, (ii) applicable only to periods under the Facilities Documentation has occurred and is continuing or would exist after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to giving effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.thereto;
Appears in 1 contract
Samples: Commitment Letter (Zuora Inc)
Incremental Facilities. (a) The Parent Borrower maymay from time to time on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent at any time, on one or more occasionsAgent, request to (i) add one or more new Classes of term facilities and/or an increase to 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 existing Revolving Commitments (any such new Class or increase, an the “Incremental Term FacilityNew Revolving Commitments” and any loans made pursuant to an Incremental Term FacilityRevolving Loans thereunder, the “Incremental Term New Revolving Loans”) and/or (ii) an increase the principal amount of any 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, the “New Commitments” and each, individually, a “New Commitment”), in any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increasecase, by an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount in excess of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be sum of (x) with respect to Incremental Facilities denominated from and after the Fourth Amendment Closing Date, $360,000,000 in Dollars, in an the aggregate plus (y) the aggregate principal amount of not less than $10,000,000additional 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 $5,000,000 increments New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in excess thereofrespect of any such New Commitments) and after giving effect to any Permitted Acquisitions and any Limited Conditionality Acquisition (if applicable pursuant to Section 1.5) consummated in connection therewith, (y1) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount the case of not less than an amount in loans under such Alternative Currency equal to New Commitments secured by Liens on the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) Collateral that rank pari passu with the Revolving Facility.
liens on the Collateral securing the Facilities (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided Liens that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loansare junior), (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, Pro Forma Basis does not exceed 4.00 to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; 1.00 and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x2) in the case of any Incremental loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Facility, any then-existing Term Facility or Loans outstanding on the Fourth Amendment Closing Date and Revolving Loans pursuant to Section 2.11 (yand accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of any Incremental a prepayment of Revolving Facility, any then-existing Revolving Facility or (iiiLoans) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, made prior to such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as time except to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent extent funded with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent proceeds of any other LendersIndebtedness; provided, and furnished to the other parties hereto.
(e) Notwithstanding however, that notwithstanding the foregoing, no Incremental Term Loan may be made the Borrower may, at any time following the Fourth Amendment Closing Date and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless on or prior to the earlier of (i) subject to Section 1.03June 30, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), 2020 and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by Taurus Special Mandatory Prepayment request the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form establishment of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.one or
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes tranches of term facilities and/or increase the principal amount of any Class of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (any such new Class tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes such tranche of incremental revolving facilities (any such new Class or increaseeach, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities Term Loans denominated in Dollarsdollars, in an aggregate principal amount minimum increments of not less than $10,000,00015,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 increments in excess thereof7,500,000, (y) with respect to Incremental Facilities Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in an aggregate principal amount minimum increments 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreementmade thereunder; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall may be secured on a pari passu basis or subordinated in right of payment with respect to the Loans outstanding as of (or made on) the Increased Amount Vion Acquisition Closing Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the ObligationsLien” for purposes of calculating the First Lien Net Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with from the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the extent greater than that applicable to the Credit Facility then in effect) and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent, the Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility) in respect to of any Incremental Term Loans incurred under the Ratio and/or Incremental Amount designated as Term B Loans Revolving Commitments that rank pari passu in right of payment and or with respect to security with the Obligationsrelevant Credit Facilities incurred on the Vion Acquisition Closing Date and maturing on (or with respect to any “term loan B”, if on or after) the All-In-Yield maturity date of the existing applicable to such Incremental Term Loans Credit Facility exceeds the All-In-Yield initial yield for the initial Term B such existing applicable Credit Facility by more than 50 basis pointspoints (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Rate MarginRate for the initial Term B Facility existing applicable Credit Facility, to the extent it is pari passu in right of payment or security with such applicable Incremental Facility, shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield yield in respect of such Incremental Term Loans and/or Incremental Revolving Commitments is no more than 50 basis points higher than the All-In-Yield initial yield for the initial Term B Facility, existing applicable Credit Facility and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) , shall be outstanding hereunder at any one time, ) and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date)) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Effective Date under Section 4.01 (other than changes 4.01; provided that if the proceeds of an Incremental Facility are to such legal opinions resulting from be used to finance a Change in LawPermitted Acquisition, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentextent agreed to by the lenders providing such Incremental Facility, customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may be implemented in lieu of the conditions set forth in this clause (e).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, by written notice to 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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B LoansLoans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan PartyParty and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which differ are not substantially consistent from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent BorrowerXxxxxxxx’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Samples: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Parent Borrower Borrowers or any Guarantor (any such Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent at any time, on one or more occasionsAgent, request to (i) add the establishment of one or more new Classes tranches of term facilities denominated in Dollars 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 any Class of the Initial Term Loans, any Incremental Term Loans or any Specified Refinancing Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any such new Class or increaseNew Term Loan Facility, an “Incremental Term Facility” and and, any loans Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase request the principal amount establishment of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes tranches of incremental revolving facilities Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any such new Class or increaseTranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and ” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”) ), in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount in excess of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.sum of,
Appears in 1 contract
Samples: Credit Agreement (Acuren Corp)
Incremental Facilities. (a) The Parent Borrower maymay from time to time on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent at any time, on one or more occasionsAgent, request to (i) add one or more new Classes of term facilities and/or an increase to 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 existing Revolving Commitments (any such new Class or increase, an the “Incremental Term FacilityNew Revolving Commitments” and any loans made pursuant to an Incremental Term FacilityRevolving Loans thereunder, the “Incremental Term New Revolving Loans”) and/or (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, the “New Commitments” and each, individually, a “New Commitment”), in any case, by an amount not in excess of the sum of (x) from and after the Fourth Amendment Closing Date, $360,000,000 in the aggregate plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any Class 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 1.5) consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First Lien Net Leverage Ratio on a Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (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 CommitmentsLoans) made prior to such time except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Borrower may, at any Incremental Revolving Commitments time following the Fourth Amendment Closing Date and on or any Specified Refinancing Revolving Commitments and/or add prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more new Classes of incremental revolving facilities Term Loan Commitments hereunder (any such new Class or increaseor, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Incremental Revolving Taurus Term Loan Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed $400,000,000 in the Incremental Amount;aggregate; provided that (1) 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. Such Each such notice shall set forth specify (i) the amount of date (each, an “Increased Amount Date”) on which the Incremental Term Loans and/or Incremental Revolving Borrower proposes that the New Commitments being requested (shall be effective, which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of a date not less than $10,000,000, and $5,000,000 increments in excess thereof, fifteen (y15) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in Business Days after the date on which such Alternative Currency equal notice is delivered to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof Administrative Agent (or (z) equal such shorter period as may be agreed to by the remaining Incremental AmountAdministrative Agent) and (ii) the dateidentity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, which shall be a Business Day“New Revolving Credit Lender” or “New Term Loan Lender,” as applicable, on which and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such Incremental Term Loans are requested to be made and/or Incremental New Revolving Commitments are requested to become effective (or New Term Loan Commitments, as applicable, be allocated and the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any amounts of such other lender being called an “Additional Lender”)allocations; provided that the 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 each Issuing Bank shall have consented (such consent not any Lender approached to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing provide all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities 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 execute 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 (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 warranties set forth in this Agreement and the other Loan Documents shall be true and correct as in all material respects of such Increased Amount Date before and after giving effect to such 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 an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set Compliance Certificate setting forth in reasonable detail the respective Incremental Assumption Agreement; provided that (i) the final maturity date calculations of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receiveSenior Secured Net Leverage Ratio, as applicable, any prepayments on and executed by a less than pro rata basis (but not on a greater than pro rata basis), (v) Responsible Officer of the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than Borrower certifying the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect requirements of such Incremental Term Loans is no more than 50 basis points higher than the Allsub-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, clause (y) have been met; (iv) for each New Lender (other than an existing Lender), the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility New Commitments shall be effected pursuant to one or more joinder agreements in form and substance reasonably satisfactory to the Administrative Agent (except executed and delivered by the Borrower, such New Lender, and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions requirements set forth in Section 4.02 shall be satisfied 2.20(g); (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (iiv) the Administrative Agent Borrower shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of make any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amountpayments required, if any, agreed upon by Administrative Agent, pursuant to Section 2.19 in connection with the relevant Issuing Bank New Revolving Commitments; (vi) both before and the Parent Borrower.after giving effect to the
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes tranches of term facilities and/or increase the principal amount of any Class of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (any such new Class tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes such tranche of incremental revolving facilities (any such new Class or increaseeach, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities Term Loans denominated in Dollarsdollars, in an aggregate principal amount minimum increments of not less than $10,000,00015,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 increments in excess thereof7,500,000, (y) with respect to Incremental Facilities Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in an aggregate principal amount minimum increments 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreementmade thereunder; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall may be secured on a pari passu basis or subordinated in right of payment with respect to the Loans outstanding as of (or made on) the Increased Amount Vion Acquisition Closing Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the ObligationsLien” for purposes of calculating the First Lien Net Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with from the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the extent greater than that applicable to the Credit Facility then in effect) and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent, the Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility) in respect to of any Incremental Term Loans incurred under the Ratio and/or Incremental Amount designated as Term B Loans Revolving Commitments that rank pari passu in right of payment and or with respect to security with the Obligationsrelevant Credit Facilities incurred on the Vion Acquisition Closing Date and maturing on (or with respect to any “term loan B”, if on or after) the All-In-Yield maturity date of the existing applicable to such Incremental Term Loans Credit Facility exceeds the All-In-Yield initial yield for the initial Term B such existing applicable Credit Facility by more than 50 basis pointspoints (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Rate Margin for the initial Term B Facility existing applicable Credit Facility, to the extent it is pari passu in right of payment or security with such applicable Incremental Facility, shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield yield in respect of such Incremental Term Loans and/or Incremental Revolving Commitments is no more than 50 basis points higher than the All-In-Yield initial yield for the initial Term B Facility, existing applicable Credit Facility and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) , shall be outstanding hereunder at any one time, ) and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date)) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Effective Date under Section 4.01 (other than changes 4.01; provided that if the proceeds of an Incremental Facility are to such legal opinions resulting from be used to finance a Change in LawPermitted Acquisition, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentextent agreed to by the lenders providing such Incremental Facility, customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may be implemented in lieu of the conditions set forth in this clause (e).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent 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 by written notice to the Administrative Agent at any time, on one or more occasions, elect to request to (i) add the establishment of one or more new Classes of 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 any Class of the Term Loans, any Incremental Term Loans or any Specified Refinancing Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any such new Class or increaseNew Term Loan Facility, an the “Incremental Term Facility” and any loans Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”” ) and/or (ii) request an increase the principal amount of in any Class Tranche of Revolving Commitments, any Incremental Revolving Credit Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; ” and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) ), in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount in excess of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be greater of (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate $300,000,000 (or a principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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 $10,000,000300,000,000) less any amount of Indebtedness incurred pursuant to Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, the First Lien Net Leverage Ratio is less than or equal to 4.50:1.00 on a Pro Forma Basis (assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Facilities are fully drawn) and, in each instance for an amount not less than $5,000,000 increments in excess thereof (or (z) a principal amount equal to the remaining Incremental AmountDollar Equivalent of $5,000,000) and individually (ii) the date, or such lesser amount which shall be a Business Dayapproved by the Administrative Agent); provided that, on which 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 requested used on the date of incurrence to be made and/or permanently prepay and refinance on a dollar-for-dollar basis Term Loans of any Tranche selected by the Borrower, and any such Incremental Revolving Commitments are requested to become effective 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 be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Facility. Such Incremental Facility shall become effective, as of such Increased Amount Date; provided that (A) no 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 clause (A), 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, (B) both before and after giving effect to the making of any such Incremental Loans, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid; provided, further that, (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 finance an Investment permitted hereunder, such Investment shall only be subject to customary “funds certain provisions”, if agreed to by the 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 Facility Activation Notice. Any Incremental Revolving Facility may provide for Amendment”) in form and substance satisfactory to the ability 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 permanently repay and terminate incremental revolving commitments on a pro rata basis be delivered any legal opinions or less than a pro rata basis (but not greater than pro rata basis) other documents reasonably requested by the Administrative Agent in connection with the Revolving Facilityany such transaction.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c) The terms and provisions of any Incremental Revolving Facility shall be, except as otherwise set forth herein, identical to the existing Dollar Revolving Credit Facility or Incremental LoanMulticurrency Revolving Credit Facility, as applicable.
(d) The applicable Borrower terms and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date provisions of any Incremental Term Loan (x) that is a “term loan A” Loans shall be no earlier than the Latest Maturity Date with respect to be, if such Incremental Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to are not Tranche B-6 Term B Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in clause (iia) above, identical to the Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, as applicable; provided that, (i) the weighted average life to maturity of any Incremental New Term Loan (x) that is a “term loan A” Facility shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans, (ii) the final maturity date of with respect to any New Term Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted Latest Maturity Date, (iii) if the initial yield on any New Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the Applicable Rate in effect for the Eurocurrency Rate for such New Term Loans and (y) if the New Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from PSP or any of its Restricted Subsidiaries for doing so (the amount of such fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such New Term Loans and (B) four) exceeds by more than 50 basis points (the then-existing amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Eurocurrency Rate Term B Loans, then the Applicable Rate then in each case calculated as effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the date of making such Incremental New Term LoanLoans (and if the Eurocurrency Rate margins on the New Term Loans are subject to a leveraged-based pricing grid, (iii) such Incremental Facilities appropriate increases to the other Applicable Rates for the Term Loans, consistent with the foregoing, shall be secured made) (for the avoidance of doubt, it is understood and agreed that the foregoing calculation shall be made, on a pari passu basis with respect to the Loans outstanding as of (or made on) the any Increased Amount Date and/or pari passu or subordinated on which Incremental Term Facilities denominated in right of security with respect to such Loans both Dollars and Euros are established, by comparing (and to x) the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance initial yield on the Incremental Term Loans denominated in Dollars made on such Increased Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated Date to the Liens securing Applicable Rate then in effect for the Obligations” outstanding Term Loans denominated in Dollars made prior to such Increased Amount Date and (y) the initial yield on the Incremental Term Loans denominated in Euros made on such Increased Amount Date to the Applicable Rate then in effect for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecuredoutstanding Term Loans denominated in Euros made prior to such Increased Amount Date), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental New Term Loans Loan Facility shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall or may be increased unsecured (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) and to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereundersubordinated in right of payment or security, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable subject to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be intercreditor arrangements reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving FacilityAgent); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees provided, that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion event the New Term Loan Facility is incurred by a Foreign Subsidiary of the Administrative Agent and the Parent Borrower PSP, such New Term Loan Facility shall be permitted to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized secured by assets in writing by the Administrative Agent accordance with the Parent Borrower’s consent Agreed Security Principles and otherwise described in Section 7.12 which assets may or may not also secure other Tranches of Term Loans. Each joinder agreement referred to in clause (not to be unreasonably withhelda) but above may, without the consent of any other Lenders, effect such amendments to this Agreement and furnished to the other parties heretoLoan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.
(e) Notwithstanding Each of the foregoingparties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-6 Term Loans, no Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans, Euro Tranche C-6 Term Loans, Multicurrency Revolving Credit Loans or Dollar Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans, Euro Tranche C-6 Term Loans, Multicurrency Revolving Credit Loans or Dollar Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Borrowing to be converted into a Base Rate Borrowing on the date of each such Incremental Term Loan, or by allocating a portion of each such Incremental Loan to each outstanding applicable Eurocurrency Rate Borrowing on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.033.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Borrowing then, on subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the Eurocurrency Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business Days before the date on which such Incremental Loan is made) plus the Applicable Rate then in effect. In addition, to the extent any Incremental Term Loans are to be additional Tranche B-6 Term Loans, Tranche B-7 Term Loans, Euro Tranche C-5 Term Loans or Euro Tranche C-6 Term Loans, the applicable scheduled amortization payments under Section 2.07 required to be made or after the making of such effectiveness, the conditions set forth in Section 4.02 Incremental Term Loans shall be satisfied ratably increased by the aggregate principal amount of such Incremental Term Loans.
(it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer f) Prior to the Increased Amount Date), if the Restricted Subsidiary incurring the Incremental Facility is an Additional Borrower, (i) such Subsidiary shall deliver to the Lenders providing the Incremental Facility (including any New Loan Lender) and the Administrative Agent, such documentation and other information reasonably requested by such Lenders or the Administrative Agent for purposes of complying with all necessary “know-your-customer” or other similar checks under all applicable laws and regulations and no written objection submitted by any of the Lenders or the Administrative Agent within five (5) Business Days of the date of receipt of such documentation and other information shall have been given by such Lenders or the Administrative Agent and (ii) if such Additional Borrower is organized or incorporated in or under the laws of, or for applicable Tax purposes is resident of or treated as engaged in a trade or business in, any jurisdiction other than a jurisdiction in or under the laws of which at least one of the then-existing Borrowers is organized or incorporated on the date such Restricted Subsidiary becomes an Additional Borrower, the Administrative Agent shall have received legal opinionsmay amend this Agreement (which amendments may include, board resolutions without limitation, Section 3.01 and the definition of “Non-Excluded Taxes” and the Agreed Security Principles) and the other closing certificates and documentation Loan Documents to include such Subsidiary as required an Additional Borrower hereunder, which amendment must be mutually agreed to by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank Borrowers, the applicable Additional Borrower, and the Parent Lenders providing the Incremental Facility but without the consent of any other Lender (provided that no such amendment shall materially adversely affect the rights of any Lender that has not consented to such amendment); provided that (a) subject to the Agreed Security Principles, each Additional Borrower shall also be a Guarantor and (b) neither the Administrative Agent nor any Lender shall be materially adversely affected by the addition of such Additional Borrower. Any obligations in respect of borrowings by any Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents. If the New Term Loan Facility is incurred in a currency other than Dollars or an Alternative Currency, this Agreement may be amended to reflect such new currency hereunder, which amendment must be mutually agreed to by the Administrative Agent and MacDermid.
(g) For the avoidance of doubt, no amendment, waiver or consent pursuant to Section 11.01 shall impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder with respect to any New Term Loan Facility without the written consent of the holders of a majority of the aggregate unpaid principal amount of such Term Loan Commitments and New Term Loans outstanding under such New Term Loan Facility.
Appears in 1 contract
Incremental Facilities. (aA) The Parent Borrower mayAt any time, by written notice but not more than one (1) time in the case of an increase to the Aggregate Term Loan Commitment and not more than five (5) times during the term of this Agreement in the case of an increase to the Aggregate Revolving Loan Commitment (unless the Administrative Agent at any timeagrees to an additional number of increases to the Aggregate Term Loan Commitment or the Aggregate Revolving Loan Commitment in its sole discretion), on one or more occasionsand subject to the terms and conditions of this Section 2.23, the Company may request to (i) add one or more new Classes of term facilities and/or increase that the principal amount of any Class Aggregate Term Loan Commitment be increased from zero in order to accommodate an incremental single-draw installment 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, the “Incremental Term Loans”, and the Term Loan Commitments relating thereto, the “Incremental Term Loan Commitments”) and/or (ii) an increase in the principal amount of any Class of Aggregate Revolving Commitments, any Incremental Loan Commitment in order to accommodate additional Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities Loans (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and”, together with any Incremental Term Loansand the Revolving Loan Commitments relating thereto, the “Incremental LoansRevolving Loan Commitments”) 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 Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender increase being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not referred to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation herein as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (yCommitment Increase”) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Lender not providing such Incremental Term Loan may be made and no Commitments or Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03Loan Commitments, on as the date on which such Loan is made or of such effectivenesscase may be; provided that, the conditions set forth in Section 4.02 shall be satisfied (it being understood that aggregate amount of all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions Incremental Term Loan Commitments and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, Loan Commitments effected during the maximum amount term of LC Exposure permitted hereunder this Agreement shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrowernot exceed $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Arvinmeritor Inc)
Incremental Facilities. (a) The Parent Borrower mayor any other Guarantor may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent at any time, on request (i) one or more occasions, request to (i) add one or more new additional Classes of term facilities and/or increase loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the principal amount same Class of any existing Class of Term Loansterm loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new which may be provided in the same currency as the existing Class of term loan commitments to be added to such Loans loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, the “Incremental Term Loans”) and/or ), (ii) increase one or more increases in the principal amount of the Revolving Credit Commitments of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any each such new Class or increase, an “Incremental Revolving Facility” Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in Dollars, in any Alternative Currency or any combination thereof (the “Additional/Replacement Revolving Credit Commitments”, and, together with any the Incremental Term FacilityLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities”; ” and the loans thereunder, commitments in respect thereof are referred to as the “Incremental Revolving Loans” and, together with any Commitments”); -119- #95203802v2296160609v3 #96160609v5
(b) Each tranche of Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount each tranche of the Incremental Term Loans and/or Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Commitments being requested (which Credit Commitment Increase shall be (x) with respect to Incremental Facilities denominated in Dollarsbe, unless otherwise agreed by the Administrative Agent, in an aggregate principal amount of that is not less than $10,000,0005,000,000 or, and $5,000,000 increments in excess thereofthe case of Incremental Term Loans, (y) with respect to Additional/Replacement Revolving Credit Commitments or an Incremental Facilities Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, ¥5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in minimum increments of $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, ¥1,000,000, A$1,000,000 or like amount in any other Alternative Currency, as applicable) in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not less than exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in such Alternative Currency equal connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Dollar Equivalent Incurrence of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which any such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments Facility, calculated on a pro rata basis or less than a pro rata basis forma basis, as if such Incurrence (but not and transactions) had occurred on the first day of such Test Period, that is no greater than pro rata basiseither (x) 4.50:1.00 or (y) the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or other Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Base Amount, the “Incremental Facility), or by any other lender (any such other lender being called an “Additional LenderLimit”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) Incremental Term Loans may be Incurred without regard to the final maturity Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this Section 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of any Incurrence of such Incremental Term Loan Loans (or substantially concurrently therewith) to either (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to prepay Term A Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) that is a “term loan B” shall be no earlier than permanently reduce the Latest Maturity Date Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with respect to Term B Loans, (iithe procedures set forth in Section 5.2(e)(ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitteddeemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in their sole discretionthe first sentence of this Section 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to elect to prepay the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental other Additional/Replacement Revolving Loan Credit Commitments shall be no earlier than permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the Latest Maturity Date with respect aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to then existing Revolving Commitments, have been Incurred pursuant to this proviso). (vic)
(i) with respect to any The Incremental Term Loans incurred under (A) shall be secured on an equal priority basis with, and only by all or a portion of, the Ratio Incremental Amount designated as Term B Loans that rank pari passu Collateral securing the Obligations (and which may be equal or junior in right of payment and security with the Obligations, if Initial Term Loans and the All-In-Yield applicable to such 2022 Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility Loans) and shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will only be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) aboveParties, (iiB) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.-120- #95203802v2296160609v3 #96160609v5
Appears in 1 contract
Samples: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at and any time, on one or more occasionsLenders (including New Lenders) may from time to time agree that such Lenders shall make, request to (i) add obtain one or more new Classes additional tranches of term facilities and/or loans or increase the principal amount of their Term Loans (which may be effected by increasing the amount of any Class then existing Facility of Term Loans, ) (any Incremental such Term Loans or any Specified Refinancing Term Loans by requesting new additional tranche of term loan commitments to be added to such Loans (any such new Class or increaseloans each, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) or increase the principal aggregate amount of any Class of Revolving Commitments, any Incremental the Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and”, together with any Incremental Term FacilityFacilities, the “Incremental Facilities”; ), as applicable, by executing and delivering to the loans thereunder, “Administrative Agent an Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth Facility Activation Notice specifying (i) the amount of such increase and the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B LoansFacilitates involved, (ii) the weighted average life to maturity of any applicable Incremental Term Loan Facility Closing Date (x) that is a “term loan A” which shall be no shorter a date not less than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and ten (y10) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of Business Days after the date of making on which such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that notice is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory delivered to the Administrative Agent (except to or such earlier date as shall be agreed by the extent (iAdministrative Agent)) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or 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 (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) the aggregate amount of all Incremental Facilities established on any financial maintenance covenant added for date shall not exceed the benefit of any Incremental Facility, such financial covenant is added also for the benefit sum of (x) in an amount equal to the case of any Base Incremental Term FacilityAmount on such date, any then-existing Term Facility or plus (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as additional amount equal to the effectiveness Voluntary Prepayment Amount on such date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of each Incremental Assumption Agreement. Each such date (the sum of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, amounts in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent clauses (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Datex), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.,
Appears in 1 contract
Incremental Facilities. (a) The Parent Initial Borrower may, by written notice to 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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 5,000,000, increments in excess thereof, (y) with respect to Incremental 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 5,000,000, increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under ?Section 10.04(b10.03(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, Facility and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement Agreement and not as an increase to the existing Revolving Commitment hereunder, hereunder (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, time and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iiiii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added added, subject to the last paragraph of 10.02(b), also for the benefit of (x) in the case of any Incremental Term Facility, any then-then existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then existing Revolving Facility), any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent BorrowerParent’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 4.02 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent BorrowerParent.
Appears in 1 contract
Samples: Credit Agreement (Galleria Co.)
Incremental Facilities. (a) The Parent Borrower maymay at any time or from time to time after the Effective Date, by written notice delivered to the Administrative Agent at any time(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), on request (i) one or more occasions, request to new term loans which may be the same Class as any outstanding Class of Term Loans (ia “Term Loan Increase”) add and/or one or more new Classes of term facilities and/or increase loans (collectively, with any Term Loan 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 one or more increases in the principal amount of the Revolving Credit Commitments of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any each such new Class or increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that:
(i) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with any the Free and Clear Incremental Term FacilityAmount, the “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) 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 Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional LenderLimit”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (xLoans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that is the Borrower and the Restricted Subsidiaries be in compliance on a “term loan A” shall be no earlier than Pro Forma Basis with the Latest Maturity Date with respect to Term A Loans requirements of Sections 10.9 and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated 10.10 as of the date most recently ended Test Period, and without regard to whether an Event of making Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance are used on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes date of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and 95 LPL – A&R Credit Agreement without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permitted, permanently reduced in their sole discretion, accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the Borrower may elect to prepay use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or receiveany combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as applicableIndebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m).
(c) (i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Initial Term Loans, any prepayments on (II) shall not mature earlier than the Initial Term Loan Maturity Date, (III) shall not have a less shorter Weighted Average Life to Maturity than pro rata basis the Initial Term Loan Facility, (but not on a greater than pro rata basisIV) shall have an amortization schedule (subject to clause (III) above), and interest rates (v) including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the maturity date or commitment reduction date Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided, however, that if the Effective Yield in respect of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Initial Term Loans as of the date of funding thereof and established on or prior to the Initial Term Loan Maturity Date exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Effective Yield in respect of such the Initial Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield of the Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facilityminus 0.50%; provided, (vii) further, to the extent that any change in the Effective Yield of the Initial Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an Term Loans, the increased Effective Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; Initial Term Loans and (viiiV) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All may otherwise have terms and documentation conditions different from those of the Initial Term Loans; provided that (except with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties heretoAgent.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Samples: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Incremental Facilities. (a) The Parent Borrower maymay from time to time on or after the Fourth Amendment Closing Date, by written notice to the Administrative Agent at any time, on one or more occasionsAgent, request to (i) add one or more new Classes of term facilities and/or an increase to 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 existing Revolving Commitments (any such new Class or increase, an the “Incremental Term FacilityNew Revolving Commitments” and any loans made pursuant to an Incremental Term FacilityRevolving Loans thereunder, the “Incremental Term New Revolving Loans”) and/or (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, the “New Commitments” and each, individually, a “New Commitment”), in any case, by an amount not in excess of the sum of (x) from and after the Fourth Amendment Closing Date, $360,000,000 in the aggregate plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any Class 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 1.5) consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First Lien Net Leverage Ratio on a Pro Forma Basis does not exceed 4.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 5.50 to 1.00, plus (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 CommitmentsLoans) made prior to such time except to the extent funded with the proceeds of Indebtedness; provided, however, that notwithstanding the foregoing, the Borrower may, at any Incremental Revolving Commitments time following the Fourth Amendment Closing Date and on or any Specified Refinancing Revolving Commitments and/or add prior to the earlier of (i) June 30, 2020 and (ii) the Taurus Special Mandatory Prepayment request the establishment of one or more new Classes of incremental revolving facilities Term Loan Commitments hereunder (any such new Class or increaseor, if the Borrower and the Administrative Agent so agree, an increase to the existing Tranche B-1 Term Loan Commitments) (such New Commitments, the “Incremental Revolving Taurus Term Loan Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed $400,000,000 in the Incremental Amount;aggregate; provided that (1) 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. Such Each such notice shall set forth specify (i) the amount of date (each, an “Increased Amount Date”) on which the Incremental Term Loans and/or Incremental Revolving Borrower proposes that the New Commitments being requested (shall be effective, which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of a date not less than $10,000,000, and $5,000,000 increments in excess thereof, fifteen (y15) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in Business Days after the date on which such Alternative Currency equal notice is delivered to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof Administrative Agent (or (z) equal such shorter period as may be agreed to by the remaining Incremental AmountAdministrative Agent) and (ii) the dateidentity of each Lender or other Person reasonably acceptable to the Administrative Agent (such other Person, which shall be a Business Day“New Revolving Credit Lender” or “New Term Loan Lender,” as applicable, on which and collectively each a “New Lender” and together “New Lenders”) to whom the Borrower proposes any portion of such Incremental Term Loans are requested to be made and/or Incremental New Revolving Commitments are requested to become effective (or New Term Loan Commitments, as applicable, be allocated and the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any amounts of such other lender being called an “Additional Lender”)allocations; provided that the 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 each Issuing Bank shall have consented (such consent not any Lender approached to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing provide all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver 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 Administrative Agent an Incremental Assumption Agreement and extent the consent of any party hereto is required for a proposed assignment under Section 10.4(b)(iii), such other documentation consent requirement shall apply to any New Lender under this Section 2.24 as the Administrative Agent though such New Lender were a proposed assignee under Section 10.4(b)(iii). All New Commitments shall reasonably specify to evidence the Incremental Facilities become effective as of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption AgreementIncreased Amount Date; provided provided, that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.no
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes tranches of term facilities and/or increase the principal amount of any Class of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (any such new Class tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes such tranche of incremental revolving facilities (any such new Class or increaseeach, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans CREDIT AGREEMENT, Page 88 thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) 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 Commitments being requested (which shall be (x) with respect to Incremental Facilities Term Loans denominated in Dollarsdollars, in an aggregate principal amount minimum increments of not less than $10,000,00015,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 increments in excess thereof7,500,000, (y) with respect to Incremental Facilities Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in an aggregate principal amount minimum increments 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or and/or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreementmade thereunder; provided that that, (i) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (i)), the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (ii)), the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term LoanLoan (it CREDIT AGREEMENT, Page 89 being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), (iii) such Incremental Facilities shall may be secured on a pari passu basis or subordinated in right of payment with respect to the Loans outstanding as of (or made on) the Increased Amount Vion Acquisition ClosingFifth Amendment Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization paymentspayments and voluntary prepayments) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with all such then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), subject to the right of the Borrowers to direct the application of voluntary prepayments and except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (v)), the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with if the Effective Yield in respect to of any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term that are “term B Loans loans” that rank pari passu in right of payment and with respect to security with any Term B Loans outstanding on the ObligationsFourthFifth Amendment Date exceeds the Effective Yield for such Term B Loans by more than 0.50%, if then the All-In-Applicable Rate for such relevant Term B Loans shall be increased to the extent necessary so that the Effective Yield applicable for such Term B Loans is equal to the Effective Yield for such Incremental Term Loans exceeds the All-In-Yield for the initial Term that are “term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, loans” minus 0.50% and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) ), shall be outstanding hereunder at any one time, time and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to any Incremental Facilities Facility which differ from are materially more restrictive (taken as a whole) than those with respect to the Loans under the existing applicable Class of Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (ix) permitted by clauses (i) through (vii) aboveof the preceding sentence, (iiy) applicable only to periods after the Latest Maturity Date applicable of the relevant Credit Facility outstanding on the FourthFifth Amendment Date (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)), or (xz) in otherwise be reasonably satisfactory to the case of Administrative Agent; provided that documentation governing any Incremental Term Facility, Facility may include such materially more restrictive terms so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such term for the benefit of each Credit Facility of the same Class (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)); provided that if any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant is added for the benefit of any Incremental Facilitythe Term B Loans pursuant to the immediately preceding proviso, such financial covenant shall be added to each Class to the extent such Class does not already have such covenant at least as restrictive. The Administrative Agent shall have been given prompt written notice thereof and this Agreement is added also amended to include such covenant for the benefit of (x) in the case each Credit Facility of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving FacilityClass. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date)) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Effective Date under Section 4.01 (other than changes 4.01; provided that if the proceeds of an Incremental Facility are to be used to finance a Limited Condition Acquisition, any such legal opinions resulting from a Change in Law, change in fact or change conditions will be subject to counsel’s form of opinion reasonably satisfactory to the Administrative Agent)Section 1.10(c) hereof.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes tranches of term facilities and/or increase the principal amount of any Class of the Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (any such new Class tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes such tranche of incremental revolving facilities (any such new Class or increaseeach, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities Term Loans denominated in Dollarsdollars, in an aggregate principal amount minimum increments of not less than $10,000,00015,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 increments in excess thereof7,500,000, (y) with respect to Incremental Facilities Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in an aggregate principal amount minimum increments 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or and/or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreementmade thereunder; provided that that, (i) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (i)), the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (ii)), the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-α-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term LoanLoan (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-α-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), (iii) such Incremental Facilities shall may be secured on a pari passu basis or subordinated in right of payment with respect to the Loans outstanding as of (or made on) the Increased Amount FifthSixth Amendment Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization paymentspayments and voluntary prepayments) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with all such then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), subject to the right of the Borrowers to direct the application of voluntary prepayments and except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (v)), the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with if the Effective Yield in respect to of any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term that are “term B Loans loans” that rank pari passu in right of payment and with respect to security with any Term B Loans outstanding on the ObligationsFifthSixth Amendment Date exceeds the Effective Yield for such Term B Loans by more than 0.50%, if then the All-In-Applicable Rate for such relevant Term B Loans shall be increased to the extent necessary so that the Effective Yield applicable for such Term B Loans is equal to the Effective Yield for such Incremental Term Loans exceeds the All-In-Yield for the initial Term that are “term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facilityloans” minus 0.50% and, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) ), shall be CREDIT AGREEMENT, Page 100 outstanding hereunder at any one time, time and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and , (viii) no Incremental Term Loan will shall not be guaranteed by any Person that is not a Subsidiary Loan PartyParty and (ix) to the extent secured, shall be secured only by the Collateral (or a portion thereof). All terms and documentation with respect to any Incremental Facilities Facility which differ from are materially more restrictive (taken as a whole) than those with respect to the Loans under the existing applicable Class of Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (ix) permitted by clauses (i) through (viiviiix ) aboveof the preceding sentence, (iiy) applicable only to periods after the Latest Maturity Date applicable of the relevant Credit Facility outstanding on the FifthSixth Amendment Date (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)), or (xz) in otherwise be reasonably satisfactory to the case of Administrative Agent; provided that documentation governing any Incremental Term Facility, Facility may include such materially more restrictive terms so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such term for the benefit of each Credit Facility of the same Class (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)); provided that if any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant is added for the benefit of any Incremental Facilitythe Term B Loans pursuant to the immediately preceding proviso, such financial covenant shall be added to each Class to the extent such Class does not already have such covenant at least as restrictive. The Administrative Agent shall have been given prompt written notice thereof and this Agreement is added also amended to include such covenant for the benefit of (x) in the case each Credit Facility of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving FacilityClass. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date)) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Effective Date under Section 4.01 (other than changes 4.01; provided that if the proceeds of an Incremental Facility are to be used to finance a Limited Condition Acquisition, any such legal opinions resulting from a Change in Law, change in fact or change conditions will be subject to counsel’s form of opinion reasonably satisfactory to the Administrative Agent)Section 1.10(c) hereof.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, by written notice to 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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans then outstanding and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B LoansLoans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred within 12 months of the Restatement Effective Date under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan PartyParty and (ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Parent Borrower and lenders thereunder. All terms and documentation with respect to Incremental Facilities which differ are not substantially consistent from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Restatement Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Samples: Credit Agreement (Coty Inc.)
Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request to (i) add one or more new Classes tranches of term facilities and/or increase the principal amount of any Class of the Term Loans, any Incremental Term Loans or any CREDIT AGREEMENT, Page 89 Specified Refinancing Term Loans by requesting new term loan loans commitments to be added to such Loans (any such new Class tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes such tranche of incremental revolving facilities (any such new Class or increaseeach, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities Term Loans denominated in Dollarsdollars, in an aggregate principal amount minimum increments of not less than $10,000,00015,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 increments in excess thereof7,500,000, (y) with respect to Incremental Facilities Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in an aggregate principal amount minimum increments 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) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or and/or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreementmade thereunder; provided that that, (i) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (i)), the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (ii)), the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term LoanLoan (it being agreed, for the avoidance of doubt, that when calculating the weighted average life to maturity of any Indebtedness being amended, restated, amended and restated, supplemented, extended, renewed, replaced, refinanced or otherwise modified, the effects of any amortization or prepayments made on such Indebtedness vis-ά-vis the amortization schedule prior to the date of the applicable amended, restatement, amendment and restatement, supplement, extension, renewal, replacement, refinancing or other modification shall be disregarded), (iii) such Incremental Facilities shall may be secured on a pari passu basis or subordinated in right of payment with respect to the Loans outstanding as of (or made on) the Increased Amount Vion Acquisition Closing Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the ObligationsLien” for purposes of calculating the First Lien Net Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization paymentspayments and voluntary prepayments) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with all allsuch then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), subject to the right of the Borrowers to direct the application of voluntary prepayments and except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) subject to exceptions for customary bridge financings (to the extent convertible on customary terms into a permanent instrument otherwise meeting the conditions in this clause (v)), the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with fromif the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the extent greater than that applicable to the Credit Facility then in effect) and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent, the Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility)Yield in respect to of any Incremental Term Loans incurred under the Ratio and/or Incremental Amount designated as Term Revolving Commitmentsthat are “term B Loans loans” that rank pari passu in right of payment and xxxxx with respect to security with the Obligationsrelevant Credit Facilities incurred on the Vion Acquisition Closing Date and maturing on (or with respect to any “term loan B”, if on or after) the All-In-Yield maturity date of the existing applicable to such Incremental Credit Facilityany Term B Loans outstanding on the Fourth Amendment Date exceeds the All-In-Yield initialEffective yYield for the initial Term such existing applicable Credit FacilityTerm B Facility Loans by more than 50 basis pointspoints (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity),0.50%, then the Applicable Rate for the initial Term B Facility existing applicable Credit Facility, to the extent it is pari passu in right of payment or security with such applicable Incremental Facility, shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield yield in respect of ofsuch relevant Term B Loans shall be increased to the extent necessary so that the Effective Yield for such Term B Loans is equal to the Effective Yield for such Incremental Term Loans and/or Incremental Revolving Commitments is no more than 50 basis points higher than the All-In-Yield initial yield for the initial Term existing applicable Credit Facilitythat are “term B FacilityCREDIT AGREEMENT, Page 91 loans” minus 0.50% and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) ), shall be outstanding hereunder at any one time, ) and (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to any Incremental Facilities Facilitiesy which differ from fromare materially more restrictive (taken as a whole) than those with respect to the Loans under the existing applicable Class of Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (iextent(x) permitted by clauses (i) through (vii) aboveabove)of the preceding sentence, (iiy) applicable only to periods after the Latest Maturity Date applicable of the relevant Credit Facility outstanding on the Fourth Amendment Date (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)), or (xz) in otherwise be reasonably satisfactory to the case of Administrative Agent; provided that documentation governing any Incremental Term Facility, Facility may include such materially more restrictive terms so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such term for the benefit of each Credit Facility of the same Class (which may be achieved by an amendment solely among the Parent Borrower and the Administrative Agent (and the Required Lenders hereby authorize the Administrative Agent to enter into such amendment)); provided that if any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant is added for the benefit of any Incremental Facilitythe Term B Loans pursuant to the immediately preceding proviso, such financial covenant shall be added to each Class to the extent such Class does not already have such covenant at least as restrictive. The Administrative Agent shall have been given prompt written notice thereof and this Agreement is added also amended to include such covenant for the benefit of (x) in the case each Credit Facility of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving FacilityClass. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.02 4.04 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 4.04 shall be deemed to refer to the Increased Amount Date)) and (B) the Parent Borrower is in compliance with the Financial Covenants on a Pro Forma Basis, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Effective Date under Section 4.01 (other than changes 4.01; provided that if the proceeds of an Incremental Facility are to such legal opinions resulting from be used to finance a Change in LawPermittedLimited Condition Acquisition, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On extent agreed to by the date of effectiveness of any lenders providing such Incremental Revolving Facility, customary “SunGard” conditionality (including making determinations pursuant to the maximum amount Permitted Acquisition Determination Method) may be implemented in lieu of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrowertheany such conditions set forth in this clausewill be subject to Section 1.10(ec ) hereof.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, Representative may by written notice to the Administrative Agent at any timetime after the Restatement Date elect to request (A) prior to the Revolving Commitment Termination Date, on one or more occasionsan increase to the existing Revolving Commitments (any such increase, request to the “Incremental Revolving Commitments”) and/or (iB) add the establishment of 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 the “Incremental Term Facility” and any loans made pursuant to an Incremental Term FacilityLoan Commitments”), “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in by an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth (i1) the sum of (x) $1,350,000,000 plus (y) the aggregate amount of the Incremental all voluntary prepayments of Term Loans and/or and Revolving Loans pursuant to Section 2.13(a) (to the extent, in the case of voluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to Section 2.13(b)), plus (z) the aggregate amount of Revolving Commitments of any Lender that was a Defaulting Lender that have been terminated, plus (2) an additional unlimited amount so long as, after giving pro forma effect to the incurrence of such Incremental Revolving Commitments being requested and/or Incremental Term Loan Commitments 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 (which shall be (x) with respect to assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Facilities denominated in DollarsTerm Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, and, in an aggregate principal amount of each case, not less than $10,000,000, and $5,000,000 increments in excess thereof, 25,000,000 individually (y) with respect or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal be incurred pursuant to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or clauses (z) equal to the remaining Incremental Amount1) and (ii2) above on such date of determination), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the datedate (each, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the an “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any on which the Borrower Representative proposes that the Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a pro rata basis or date not less than a pro rata basis 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (but not greater than pro rata basisB) with the Revolving Facility.
identity of each Lender or other Person that is an Eligible Assignee (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility)each, or by any other lender (any such other lender being called an “Additional Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not may elect or decline to be unreasonably withheld) to such Additional Lender’s providing arrange such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility Revolving Commitments or Incremental Term Loan shall not require the approval of Commitments in its sole discretion and any existing Lender other than any existing Lender providing approached to provide all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any or Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B LoansCommitments may elect or decline, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their its sole discretion, to elect 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: (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to prepay such Incremental Revolving Commitments or receiveIncremental Term Loan Commitments, as applicable, any prepayments on a less than pro rata basis ; (but not on a greater than pro rata basis), (v2) both before and after giving effect to the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect incurrence of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no NY\6180200.13 Commitments and/or Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) aboveCommitments, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case each of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 3.02 shall be satisfied satisfied; (3) the U.S. Borrower shall be in pro forma compliance with each of the 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 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 documents (including modifications of Mortgages and title insurance endorsements or 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 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 references 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 occasion satisfaction of any Borrowing” 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 Section 4.02 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 to refer to for all purposes a Revolving Commitment of the Increased Amount Date), applicable Class and each Loan made thereunder (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.NY\6180200.13
Appears in 1 contract
Samples: Credit Agreement (PVH Corp. /De/)
Incremental Facilities. (a) The Parent Borrower may, from time to time after the Closing Date, upon notice by written notice the Borrower to the Administrative Agent at any timeand the Person appointed by the Borrower to arrange an incremental Facility (each, on one or more occasions, request to an “Incremental Credit Facility”) (such Person (who may be (i) add the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount thereof and the proposed currency denomination thereof, request (A) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, a “Revolving Credit Commitment Increase”), or (B) the addition of one or more new Classes of term revolving credit facilities and/or increase to the principal amount of any Class of Term LoansFacilities, any Incremental Term Loans in each case, in such currency or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to currencies as the Borrower identifies in such Loans notice (any such new Class or increaseeach, an a “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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental New Revolving Facility” and, together with any Incremental Term Facilityadvance made by a Lender thereunder, a “Incremental FacilitiesNew Revolving Loan”; and the loans thereundercommitments thereof, the “Incremental New Revolving Loans” and, Commitment”; and together with any Incremental Term Loansthe Revolving Credit Commitment Increase, the “Incremental LoansNew Loan Commitments”) ), in an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth sum of:
(i) the amount greater of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be A) $250,000,000 and (xB) with respect to Incremental Facilities denominated in Dollars, in an aggregate principal amount 100.0% of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental 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) equal to the remaining Incremental Amount) and Four Quarter Consolidated EBITDA minus (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision amount of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness previously incurred in reliance on this clause (w) as Incremental Credit Facilities pursuant to Section 2.14 (and not redesignated as incurred under (1) any other provision of the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured)in accordance with this Agreement, (iv2) any mandatory prepayment (other than scheduled amortization payments) Ratio Debt in the first paragraph of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay Section 7.01 or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities any other provision of this Agreement) (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then“Cash-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Capped Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility”); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.,
Appears in 1 contract
Samples: Credit Agreement (CarGurus, Inc.)
Incremental Facilities. (a) The Parent Borrower may, may by written notice to the Administrative Agent at any time, on elect to request the establishment of one or more occasions, request to (ix) add one or more new Classes additional tranches of term facilities and/or increase loans denominated in Dollars or Canadian Dollars (the principal amount of any Class of Term Loanscommitments thereunder, 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 the “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term LoansLoan Commitments”) and/or (iiy) increase the principal amount of any Class of Revolving Commitments, any Incremental increases in Canadian Revolving Commitments or any Specified Refinancing North American Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an the “Incremental Revolving FacilityCommitments” and, together with any the Incremental Term FacilityLoan Commitments, the “Incremental FacilitiesLoan Commitments”; and the loans thereunder), “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in by an aggregate amount not to exceed the Incremental Amount;. Such notice shall set forth in excess of $150,000,000 (iplus (A) the amount of amount, up to a further $250,000,000, by which the Incremental Term Loans and/or Incremental 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 being requested (which shall be (xare permanently reduced in accordance with Section 2.11) with respect to Incremental Facilities denominated in Dollars, in an the aggregate principal amount of and not less than $10,000,00025,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent, and $5,000,000 increments in excess thereofacting reasonably, or (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to shall constitute the Dollar Equivalent of difference between $10,000,000, and $5,000,000 increments in excess thereof or 150,000,000 (z) equal to the remaining Incremental Amount) and plus (iiA) the dateamount, up to a further $250,000,000, by which shall be a Business Day, on which such Incremental the Term Loans are requested voluntarily prepaid in accordance with Section 2.12 and (B) the amount, up to be made and/or Incremental a further $75,000,000, by which the Revolving Commitments are requested permanently reduced in accordance with Section 2.11) and the aggregate amount of all such Incremental Loan Commitments obtained on or prior to become effective such date). Each such notice shall specify the date (the each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person, the Borrower or any affiliate of the Borrower) to provide all or a portion of the Incremental Loan Commitments; provided, that (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 (ii) any Lender or other Person providing all or a portion of the Incremental Loan Commitments shall be reasonably acceptable to the Administrative 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 (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loan Commitments; (ii) each of the representations and warranties made by any Loan Party in or pursuant to an the Loan Documents shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date; (iii) both before and after giving effect to the making of any Incremental Facility Activation NoticeTerm Loans or Incremental Revolving Loans, each of the conditions set forth in Section 6.2 shall be satisfied; (iv) Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 8.1 on a pro forma basis after giving effect to such Incremental Loan Commitments and the borrowings thereunder; (v) the Incremental Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the Persons providing such Incremental Loan 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 Revolving Facility may provide Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facilityall purposes of this Agreement.
(b) 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 North American Revolving Commitments or Canadian Revolving Commitments, as applicable, shall assign to each Lender with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with North American Revolving Commitments or Canadian Revolving Commitments, as applicable, at the principal amount thereof, such interests in the North American Revolving Loans may or Canadian Revolving Loans, as applicable, outstanding on such Increased Amount Date as shall be provided necessary in order that, after giving effect to all such assignments and purchases, the North American Revolving Loans or Canadian Revolving Loans, as applicable, will be held by any existing North American Revolving Lenders or Canadian Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their North American Revolving Commitments or Canadian Revolving Commitments, as applicable, after giving effect to the addition of such Incremental Revolving Commitments to the North American Revolving Commitments or Canadian Revolving Commitments, as applicable, (b) each Incremental Revolving Commitment shall be deemed for all purposes a North American Revolving Commitment or Canadian Revolving Commitment, as specified in the relevant Lender Joinder Agreement, and each Loan made thereunder (it being understood an “Incremental Revolving Loan”) shall be deemed, for all purposes, a North American Revolving Loan or a Canadian Revolving Loan, as applicable, and (c) each existing Incremental Revolving Lender shall have no become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. Notwithstanding the foregoing, if any Bankers’ Acceptances accepted by an assigning Lender remain outstanding on the date of assignment of the applicable North American Revolving Commitment or Canadian Revolving Commitment to an Incremental Revolving Lender, such Bankers’ Acceptances shall remain the liability and obligation of the assignor Lender and the assignor Lender shall be entitled to participate all of the rights, titles and benefits arising out of this Agreement and the other Loan Documents with respect to such Bankers’ Acceptances (including reimbursement rights); and the Incremental Revolving Lender shall indemnify the assignor Lender and hold the assignor Lender harmless from and against any losses and costs paid or incurred by the assignor Lender in any connection with such Bankers’ Acceptances (other than losses or costs which arise out of the negligence or willful misconduct of the assignor Lender) to the extent of the assignee Incremental Facility)Revolving Lender’s North American Revolving Commitment or Canadian Revolving Commitment, as the case may be, provided for herein, and shall be entitled to that percentage (as agreed to between such assignee and the assignor) of a proportionate amount of the fees paid in respect of such Bankers’ Acceptances based upon the relative proportions of the North American Revolving Commitments or by any other lender (Canadian Revolving Commitments, as the case may be, of the assignor and assignee and the number of days remaining in the term of any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional LenderBankers’ Acceptances.
(c) The creation or provision of On any Increased Amount Date on which any Incremental Facility or Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall not require make a Loan to the approval of any existing Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender other than any existing shall become a Lender providing all or part of any hereunder with respect to the Incremental Facility or Term Loan Commitment and the Incremental LoanTerm Loans made pursuant thereto.
(d) The applicable Borrower terms and each Lender or Additional Lender providing a portion provisions of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or and Incremental Revolving Term Loan Commitments shall be the same in all material respects as the terms and provisions of the Tranche A-1 Term Loans (if denominated in Dollars) or the Tranche A-2 Term Loans (if denominated in Canadian Dollars) (to be set forth the extent such Incremental Term Loans are an increase in the respective Tranche A-1 Term Facility or the Tranche A-2 Term Facility or have material amortization) or the Tranche B-1 Term Loans or the Tranche B-2 Term Loans (to the extent such Incremental Assumption Agreement; provided Term Loans are an increase in the Tranche B-1 Term Facility or the Tranche B-2 Term Facility or have nominal amortization), as the case may be, except that (i) the final maturity date of any and amortization applicable to such Incremental Term Loans shall be as agreed by the Borrower and the applicable Incremental Term Loan (x) Lenders; provided, that is a “term loan A” the applicable Incremental Term Loan maturity date shall be no earlier than the Latest Tranche A-1 Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than or the Latest Tranche A-2 Maturity Date, or the Tranche B-1 Maturity Date with respect to Term B Loansor the Tranche B-2 Maturity Date, (ii) as the case may be, and the weighted average life to maturity of any such Incremental Term Loan (x) that is a “term loan A” Loans shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Tranche A-0 Xxxx Loans or the Tranche A-2 Term A Loans, or the Tranche B-1 Term Loans or the Tranche B-2 Term Loans, as the case may be; and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made onii) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders interest rate margin in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) agreed by the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment Borrower and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds Loan Lenders; provided, that such interest rate margin (taking into account any OID or upfront fees in connection therewith) may not exceed the All-In-Yield Applicable Margin for the initial Tranche A-1 Term B Facility Loans or the Tranche A-2 Term Loans, or the Tranche B-1 Term Loans or the Tranche B-2 Term Loans, as the case may be (it being understood that a portion of any interest margin may take the form of OID or upfront fees (which shall be deemed to constitute like amounts of OID), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), by more than 50 basis points0.25%, or if it does so exceed such Applicable Margin by more than 0.25%, such Applicable Margin for the Tranche A-1 Term Loans, the Applicable Rate for Tranche A-2 Term Loans, the initial Tranche B-1 Term B Facility Loans or the Tranche B-2 Term Loans, as the case may be, shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield interest rate margin in respect of such Incremental Term Loans Loan (giving effect to any OID or upfront fees issued in connection with such Incremental Term Loan) is no more than 50 basis points higher 0.25% greater than the All-In-Yield Applicable Rate for the initial Tranche A-1 Term B FacilityLoans, the Tranche A-2 Term Loans, the Tranche B-1 Term Loans or the Tranche B-2 Term Loans, as the case may be (vii) giving effect to any OID issued in connection with the Tranche A-1 Term Loans, the Tranche A-2 Term Loans, the Tranche B-1 Term Loans or the Tranche B-2 Term Loans, as the case may be). The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to the extent an Incremental North American Revolving Facility is structured Loans and the North American Revolving Commitments or the Canadian Revolving Loans and the Canadian Revolving Commitments, as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereundercase may be, (x) no more other than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to upfront fees.
(e) Each Lender Joinder Agreement may, without the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case consent of any Incremental Term Facilityother Lenders, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, effect such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as amendments to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall and the other Loan Documents as may be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower Agent, to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders2.25, and furnished subject to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth proviso in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent)11.1.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may, may by written notice to the Administrative Agent elect to request the following:
(i) (A) prior to the Revolving Credit Maturity Date applicable to any Class of Revolving Credit Commitments in effect at any timethe time of such request, on the Borrower may request one or more occasionsincreases to such Class (any such increase, request to “Incremental Revolving Credit Commitments”) and/or (iB) add the establishment of 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 the “Incremental Term Facility” Loan Commitments”), in amounts that, together, are (i) not in excess of an aggregate maximum amount of $250,000,000 for all such Incremental Revolving Loan Commitments and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or Loan Commitments during the term of this Agreement and (ii) increase the principal amount of any Class of Revolving Commitmentswith respect to each such request, any Incremental Revolving Commitments not less than $20,000,000 (or any Specified Refinancing lesser amount that is approved by the Agent) and integral multiples of $5,000,000 in excess of that amount;
(ii) if and to the extent that any of the Revolving Credit Commitments and/or add one in effect on the Second Amendment Effective Date expire or more new Classes have been reduced or terminated on or before the time of incremental revolving facilities such request and there is no Replacement ABL Facility in effect at such time, the Borrower may request the reinstatement of all or any portion of such expired, reduced or terminated Revolving Credit Commitments (any such new Class or increase, an the “Incremental Reinstated Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental LoansCredit Commitments”) in an aggregate maximum amount not to exceed the Incremental Amount;. Such notice shall set forth (i) the amount $100,000,000 and having a final maturity of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in DollarsJune 30, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in 2017 or such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof earlier or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested 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 terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans later date as may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Borrower, the Agent with and the Parent Borrower’s consent Lenders agreeing to provide such Reinstated Revolving Credit Commitments; and
(iii) the Borrower may request the establishment of one or more new term loan commitments (the “Tranche B-3 Term Loan Commitments”) to refinance Tranche B-1 Term Loans in whole or in part, in amounts that are not in excess of the principal amount of the Tranche B-1 Term Loans being refinanced therewith (plus unpaid accrued interest and any premium thereon plus other fees and expenses incurred (or reasonably estimated to be unreasonably withheldpayable) but without in connection therewith and any original issue discount) and the consent proceeds of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references applied to “repay the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent Borrower.Tranche B-1
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Incremental Facilities. (a) The Parent Canadian Borrower maymay at any time or from time to time after the Amendment No. 2 Effective Date, by written notice delivered to the Administrative Agent at any time, on request (i) one or more occasions, request to (i) add one or more new additional Classes of term facilities and/or increase loans or additional term loans of the principal amount same Class of any existing Class of Term Loans, any Incremental Term Loans term loans denominated in Dollars or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans Canadian Dollars (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, the “Incremental Term Loans”) and/or and (ii) increase one or more increases in the principal amount of the Revolving R-2 Facility Commitments of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any each such new Class or increase, an “Incremental Revolving FacilityCredit Commitment Increase,” and, and together with any the Incremental Term Facility, Loans the “Incremental Facilities”; ” and the loans thereunder, commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.06, at the time that any such Incremental Term Loan or Incremental Revolving Loans” andCredit Commitment Increase is made or effected (and after giving pro forma effect thereto), together with except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with an acquisition, no Event of Default under Sections 7.01(b), (c), (h) or (i)) shall have occurred and be continuing.
(b) Each tranche of Incremental Term Loans, “Loans and each Incremental Loans”) Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not to exceed less than $5.0 million (or CAD5.0 million if denominated in Canadian Dollars) (it being understood that such amount may be less than $5.0 million (or CAD5.0 million if denominated in Canadian Dollars) if such amount represents all remaining availability under the Incremental Amount;. Such notice shall limit set forth below) (iand in minimum increments of $1.0 million (or CAD1.0 million if denominated in Canadian Dollars) in excess thereof), and, subject to the proviso at the end of this Section 2.21(b), the aggregate amount of the Incremental Term Loans and/or and Incremental Revolving Commitments being requested Credit Commitment Increases (which after giving pro forma effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.21(b) shall not exceed, as of the date of incurrence of such Indebtedness or commitments, an aggregate amount of Indebtedness, such that, subject to Section 1.06, after giving pro forma effect to such incurrence (and after giving pro forma effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases then outstanding were fully drawn), Holdings would be in compliance with a First Lien Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than 3.50:1.00 (this clause, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this Section 2.21(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans on the date of incurrence of such Incremental Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with respect to Incremental Facilities denominated the procedures set forth in Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, Section 2.12 or (y) permanently reduce or replace the Revolving R-2 Facility Commitments or Extended Revolving Credit Commitments in accordance with respect the procedures set forth in Section 2.09 (and any such Incremental Term Loans shall be deemed to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal have been incurred pursuant to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amountthis proviso) and (ii) on or prior to the datedate that is 60 days after the occurrence of a Permitted Change of Control, which Incremental Revolving Credit Commitment Increases may be incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the first part of this Section 2.21(b) in an aggregate amount pursuant to this clause (ii) equal to the aggregate amount of Permitted Change of Control Terminated Commitments that were terminated in connection with such Permitted Change of Control.
(i) The Incremental Term Loans (A) shall rank equal in right of payment and security with the Term B-34 Loans, shall be secured only by all or a Business Dayportion of the Collateral securing the Secured Obligations and, on which if guaranteed, shall only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Term B-34 Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Term B-34 Loans (provided that up to $150.0 million of Incremental Term Loans, less the amount, if any, of Indebtedness secured by Liens incurred pursuant to the exception set forth in the last proviso of Section 6.02(i), may have a shorter Weighted Average Life to Maturity than the then-outstanding Term B-34 Loans; provided, further, that any Incremental Term Loans incurred solely for the purpose of funding export-import bank financings (“Export Financing”) may have a shorter Weighted Average Life to Maturity than the then outstanding Term B-34 Loans), (D) shall have a maturity date (other than with respect to the Incremental Term Loans described in the provisos to clause (C)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Canadian Borrower and the lenders of the Incremental Term Loans; provided that in the event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans incurred pursuant to the proviso of Section 2.21(b)), is greater than the Effective Yield for the Term B-34 Loans by more than 0.50%, then the Applicable Margins for the Term B-34 Loans shall be increased to the extent necessary so that the Effective Yield for the Term B-34 Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50%; provided, further, that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Margins for the Term B-34 Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans are requested shall be deemed to be made and/or Incremental Revolving Commitments are requested the interest rate (calculated after giving pro forma effect to become effective (the “Increased Amount Date”) any increases required pursuant to an the immediately succeeding proviso) of such Incremental Facility Activation Notice. Any Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Term B-34 Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Final Maturity Date) and (y) the documentation governing any Incremental Revolving Facility Term Loans may provide include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving benefit of each Facility.
(bii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving R-2 Facility Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of the Revolving R-2 Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving R-2 Facility Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without any requirement to pay such fees to any existing Revolving R-2 Facility Lenders)).
(d) Each notice from the Canadian Borrower pursuant to this Section 2.21 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitment Increases. Incremental Term Loans may be provided made, and Incremental Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Canadian Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it being understood each that no existing Lender shall with an Term B-34 Loan Commitment will have no an obligation to participate in make a portion of any Incremental Facility)Term Loan, no existing Lender with a Revolving R-2 Facility Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with a Revolving R-2 Facility Commitment will have an obligation to provide a portion of any Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other lender bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheldwithheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Facilities Revolving Credit Commitment Increases if such consent would be required under Section 10.04(b9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Credit Commitment Increases, the Swingline Lender and the L/C Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Incremental Revolving Credit Commitment Increases if such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ce) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment)Loans, except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan Credit Commitment Increases shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, become Commitments (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any an Incremental Term FacilityRevolving Credit Commitment Increase to be provided by an existing Lender with a Revolving R-2 Facility Commitment, any then-existing Term an increase in such Lender’s applicable Revolving R-2 Facility or Commitment) under this Agreement pursuant to an amendment (yan “Incremental Agreement”) in to this Agreement and, as appropriate, the case other Loan Documents, executed by Holdings, the Canadian Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.21(c), without the consent of any Incremental Revolving Facilityother Lenders, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, effect such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as amendments to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall and the other Loan Documents as may be amended as necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Parent Borrower Canadian Borrower, to effect the provisions of or be consistent with this Section 2.20(including (i) in connection with an Incremental Revolving Credit Commitment Increase, to reallocate Revolving R-2 Facility Credit Exposure on a pro rata basis among the relevant Revolving R-2 Facility Lenders, (ii) to increase the Effective Yield of the applicable Class of Term Loans to the extent necessary in order to ensure that any applicable Class of Incremental Term Loans are “fungible” with such existing Class of Term Loans and/or (iii) to add or extend “soft call” or add or extend any other “call protection”, in either case for the benefit of any existing Class of Term Loans. Any The effectiveness of any Incremental Agreement and the occurrence of any Credit Event pursuant to such deemed amendment may Incremental Agreement shall be memorialized subject to the satisfaction of such conditions as the parties thereto shall agree. The Canadian Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement; provided, however, that the proceeds of any Incremental Term Loans incurred as described in writing by the Administrative Agent proviso to Section 2.21(b), shall be used in accordance with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties heretoterms thereof.
(ei) Notwithstanding the foregoing, no No Lender shall be obligated to provide any Incremental Term Loan may be made and no Loans or Incremental Revolving Credit Commitment Increases unless it so agrees, and the Canadian Borrower shall become effective under not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans or Incremental Revolving Credit Commitment Increases.
(ii) Upon each increase in the Revolving R-2 Facility Commitments of any Class pursuant to this Section 2.20 unless Section, each Lender with a Revolving R-2 Facility Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (ieach, an “Incremental Revolving Credit Commitment Increase Lender”) subject in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to Section 1.03have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving R-2 Facility Commitment of such Class (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving R-2 Facility Commitments of such Class of all Lenders represented by such Lender’s Revolving R-2 Facility Commitment of such Class. If, on the date on which such Loan is made or of such effectivenessincrease, there are any Revolving R-2 Facility Loans of such Class outstanding, such Revolving R-2 Facility Loans shall on or prior to the conditions set forth effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving R-2 Facility Loans made hereunder (reflecting such increase in Section 4.02 Revolving R-2 Facility Commitments of such Class), which prepayment shall be satisfied (it accompanied by accrued interest on the Revolving R-2 Facility Loans of such Class being understood prepaid and any costs incurred by any Lender in accordance with Section 2.17. The Administrative Agent and the Lenders hereby agree that all references to “the occasion of any Borrowing” minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 4.02 this Agreement shall be deemed to refer not apply to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory transactions effected pursuant to the Administrative Agent)immediately preceding sentence.
(fg) On This Section 2.21 shall supersede any provisions in Section 2.19 or 9.08 to the date contrary. For the avoidance of effectiveness doubt, any provisions of this Section 2.21 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank and the Parent BorrowerCommitment without such Lender’s consent.
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Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions, request from time to time (i) add one or more new Classes request the establishment 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 up to three incremental term loan commitments to be added to such Loans facilities (any such new Class or increaseeach, an “Incremental Term Loan Facility” and any loans made pursuant to an Incremental Term Facilitycollectively, the “Incremental Term LoansLoan 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 principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving FacilityCommitment” and, together with any all Incremental Term FacilityLoan Facilities, the “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed $50,000,000 and, together with any Incremental Term Loan Facilities, not to exceed the Incremental Amount;Amount and subject to the terms of Sections 3.15(c) and 3.15(e) below from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each 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 Administrative Agent (which approval shall not be unreasonably withheld) and, in the case of any such Incremental Revolving Lenders, the Issuing Lender and (y) an Eligible Assignee. Such notice shall set forth (i) the amount of the Incremental Term Loans Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be (x1) with respect to Incremental Facilities denominated in DollarsTerm Loans, in an aggregate principal amount minimum amounts of not less than $10,000,000, 25,000,000 and in increments of $5,000,000 increments 1,000,000 in excess thereof, (y2) with respect to Incremental Facilities denominated in an Alternative CurrencyRevolving Commitments, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent minimum amounts of $10,000,000, 5,000,000 and increments of $5,000,000 increments 1,000,000 in excess thereof thereof, or (z3) equal to the remaining Incremental Amount) and ), (ii) the date, which shall be a Business Day, date on which such Incremental Term Loans are requested to be made Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”), and (iii) pro forma financial statements demonstrating compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.1 and the requirement set forth in Section 3.15(e)(iv) after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Commitments and the Loans to be made thereunder (without netting any cash proceeds thereof or of any Incremental Term Loan Facility 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 any permitted Investments financed thereby) as if made and applied on the date of the most-recent financial statements of the Borrower delivered pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving FacilitySection 6.1.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Incremental Term Loan Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities Term Loan Commitment of such Lender or Additional Incremental Term Loan Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Each Incremental Facilities Assumption Agreement shall determine specify the terms of the Incremental Term Loans and/or Incremental Revolving Loan Commitments to be set forth in requested thereunder; provided, that, without the respective Incremental Assumption Agreement; provided that prior written consent of the Required Lenders, (i) no proceeds of any Loans made on the final maturity closing date of any Incremental Term Loan (x) that is a “term loan A” Commitments shall be no earlier than the Latest Maturity Date with respect used to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loansmake any Restricted Payment, (ii) subject to Section 3.15(b)(v), the weighted average life to maturity terms and conditions of any such Incremental Term Loan Loans (xother than terms affecting Weighted Average Yield of such Incremental Term Loans) shall be no less favorable or more restrictive in any material respect as to the Borrower or any of its Subsidiaries than the terms of the Revolving Facility unless such terms and conditions of the Revolving Facility are amended on or prior to the relevant Increased Amount Date so that is a “term loan A” the terms of the Revolving Facility are consistent in all material respects with the terms and conditions of such Incremental Term Loans, (iii) the Weighted Average Life to Maturity of all Incremental Term Loans of any series shall be no shorter than the then longest remaining weighted average life Weighted Average Life to maturity Maturity of the then-Revolving Loans or any of the then existing Incremental Term A Loans and (yif any) that (whichever is a “term loan B” longest), (iv) the applicable maturity date of each series of Incremental Term Loans shall be no shorter than the then longest remaining weighted average life to latest of the final maturity of the then-Revolving Loans or any of the then existing Incremental Term B LoansLoans (if any), (v) the Weighted Average Yield applicable to the Incremental Term Loans of each series shall be determined by Borrower and the applicable new Lenders and shall be set forth in each case calculated applicable Incremental Assumption Agreement; provided, however, that the Weighted Average Yield applicable to the Incremental Term Loans of each series shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as of amended through the date of making such calculation with respect to Revolving Loans and the then existing Incremental Term LoanLoans (if any), (iii) such Incremental Facilities shall be secured on a pari passu basis plus 0.50% per annum unless the interest rates with respect to the Revolving Loans outstanding or the then existing Incremental Term Loans, as of applicable, are increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Revolving Loans and the then existing Incremental Term Loans, as applicable, to equal the Weighted Average Yield then applicable to the Incremental Term Loans, less 0.50% per annum and (or made onvi) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such the initial Incremental Term Loan and initial Incremental Term Loan Commitments incurred pursuant to this Section 3.15, all other terms of if not consistent with the terms of the Revolving Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is must be reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured Majority Revolving Lenders (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated as determined without having regard to the Liens securing commitments of the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those Lenders with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any relevant Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving FacilityLoans); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended (or amended and restated) to the extent necessary (as necessary or appropriate, in the reasonable opinion of determined by the Administrative Agent and the Parent Borrower Majority Revolving Lenders acting reasonably) to effect reflect the provisions existence and terms of or be consistent with this Section 2.20the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment (or amendment and restatement) may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(c) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. The terms of any Incremental Revolving Commitments shall be identical to those with respect to the existing Revolving Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended (or amended and restated) to the extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby. Any such amendment (or amendment and restatement) may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Upon any Increased Amount Date on which Incremental Revolving Commitments are effected through an increase in the Revolving Commitments pursuant to this Section 3.15, (i) each of the Revolving Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Incremental 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 Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iii) each Incremental Revolving Lender shall become a Revolving Lender with respect to the Incremental Revolving Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment Facility shall become effective under this Section 2.20 3.15 unless (i) subject to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 5.2 shall be satisfied (it being understood and the Administrative Agent shall have received a certificate to that all references to “effect dated such date and executed by a Responsible Officer of the occasion of any Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date)Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 5.1 and such additional documents and filings (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory including amendments to the Administrative Agent).
Mortgages (fthe “Mortgage Amendments”) On and amendments to the other Security Documents and title date down and modification endorsements to the Title Policies insuring such Mortgage Amendments and bringing the date of effectiveness coverage of such Title Policies and all endorsements thereto forward to the date of recordation of the applicable Mortgage Amendments) as the Administrative Agent may reasonably require to assure that the Incremental Facilities are secured by the Collateral ratably with the existing Revolving Loans or existing Incremental Facilities (as applicable), (iii) the Borrower and its Subsidiaries would be in compliance with the financial covenants set forth in Section 7.1 on a Pro Forma Basis after giving effect to such Incremental Facilities and the Loans to be made thereunder (and assuming a full drawing of any such Incremental Revolving Commitments (but without netting any cash proceeds thereof or of any Incremental Revolving Facility, Term Loan Facility for purposes of clause (a) of the maximum amount definition of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank Consolidated First Lien Leverage Ratio)) and the Parent Borrowerapplication of the proceeds therefrom as if made and applied on such date and (iv) the Consolidated First Lien Leverage Ratio does not exceed 2.00 to 1.00 on a Pro Forma Basis after giving effect to such Incremental Facilities and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
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Incremental Facilities. (a) The Parent At any time and from time to time, subject to the terms and conditions set forth herein the Borrower may, by written notice to the Administrative Agent at any time, on one or more occasions(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to (i) add additional Term Loans or add one or more new Classes additional tranches of term facilities and/or increase loans (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 any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities increases in the Revolving Facility Commitments (any such new Class or increase, an the “Incremental Revolving FacilityIncreases”), or one or more additional tranches of revolving commitment (the “Incremental Revolving Facility Commitments” and, and together with any the Incremental Term FacilityLoans and the Incremental Revolving Increases, the “Incremental Facilities”; ), in each case subject to the terms and conditions in this Section 2.22.
(b) Notwithstanding anything to the loans thereundercontrary herein, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an the aggregate principal amount not to exceed of the Incremental Amount;. Such notice Facilities shall set forth not exceed:
(i) the greater of (x) $19.0 million and (y) 42% of Consolidated EBITDA of the Borrower for the prior four consecutive fiscal quarters for which the Required Financial Statements required to be delivered have been or are required to have been delivered to the Administrative Agent pursuant to Section 5.04, in each case determined at the time of incurrence (the “Fixed Incremental Amount”; net of the aggregate amount of Incremental Equivalent Debt incurred in reliance on the Fixed Incremental Amount); plus
(ii) an unlimited amount of Indebtedness that is secured on a pari passu basis with the Facilities if, on a Pro Forma Basis, the First Lien Net Leverage Ratio is equal to or less than 4.15:1.00; plus
(iii) an unlimited amount of junior lien facilities or unsecured debt if (x) in the case of junior lien facilities, on a Pro Forma Basis, the Secured Net Leverage Ratio is equal to or less than 4.15:1.00 and (y) in the case of unsecured debt, the Total Net Leverage Ratio is equal to or less than 3.90:1.00 (clauses (b)(ii) and (iii) above, the “Ratio Incremental Amount”); (the sum of the amounts in clauses (i) through (iii) above, the “Available Incremental Amount”); provided that Incremental Facilities may be incurred under clauses (i) through (iii) in a single transaction by first calculating the portion of the Indebtedness being incurred under clauses (ii) and/or (iii) above (without giving effect to the Indebtedness being incurred under clause (i) above) and second calculating the portion of the Indebtedness being incurred under clause (i) above. Any Indebtedness incurred under clause (i) above shall be automatically reclassified as Indebtedness incurred under clause (ii) or (iii) above if the Borrower meets the applicable leverage ratio under clause (ii) or (iii) at such time on a Pro Forma Basis (provided that Pro Forma Basis shall not be calculated net of proceeds of any incurrence of such Incremental Term Loans). Each tranche of Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in Dollars, an integral multiple of $1,000,000 and in an aggregate principal amount of that is not less than $10,000,000, and $5,000,000 increments (or such lesser minimum amount approved by the Administrative Agent in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal its reasonable discretion); provided that such amount of not may be less than an the applicable minimum amount in or integral multiple amount if such Alternative Currency equal to the Dollar Equivalent of $10,000,000, and $5,000,000 increments in excess thereof or (z) equal to amount represents all the remaining availability under the Fixed Incremental Amount.
(c) Each notice from the Borrower pursuant to this Section 2.22 shall set forth the requested amount and (ii) proposed terms of the date, which shall be a Business Day, on which such relevant Incremental Term Loans are requested to be made Loans, Incremental Revolving Increases and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Facility Commitments. Incremental Facility Activation Notice. Any Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans Commitments may be provided by any existing Lender (it being understood each that no existing Lender will have an obligation to provide Incremental Term Loans, Incremental Revolving Increases or Incremental Revolving Facility Commitments nor shall have no obligation the Borrower be required to offer any existing Lender the opportunity to participate in any such Incremental Facility), in each case, on terms permitted under this Section 2.22 or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and Agent, and, with respect to any Incremental Revolving Increase or Incremental Revolving Facility Commitment, each Issuing Bank shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such any existing Lender or Additional Lender’s providing such Incremental Facilities Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments if such consent by the Administrative Agent (and each Issuing Bank) would be required under Section 10.04(b) 9.04 for an assignment of Loans or Revolving Facility Commitments to such Lender or Additional Lender.
(c) The creation or provision of any . Each Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any become effective pursuant to an amendment (each, an “Incremental Facility or Incremental Loan.
(dAmendment”) The applicable Borrower and to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term B Loans, in each case calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties Facility and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on Agent, and so long as the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to requirements of this Section 2.22 are met, without the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date consent of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then other existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu in right of payment and security with the Obligations, if the All-In-Yield applicable to such Incremental Term Loans exceeds the All-In-Yield for the initial Term B Facility by more than 50 basis points, the Applicable Rate for the initial Term B Facility shall be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield in respect of such Incremental Term Loans is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans under the existing applicable Credit Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility or (iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving FacilityLender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption AgreementFacility Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementFacility Amendment, this Agreement and the other Loan Documents, as applicable, shall be deemed amended as to the extent (but only to the extent) necessary or appropriate, in to reflect the reasonable opinion existence and terms of the Administrative Agent Incremental Facility and the Parent Borrower to effect the provisions of or be consistent Incremental Term Loans, Incremental Revolving Increases and/or Incremental Revolving Facility Commitments evidenced thereby. Upon each increase in Revolving Facility Commitments in accordance with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders2.22, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject each Revolving Lender immediately prior to Section 1.03, on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any Borrowing” in Section 4.02 shall increase will automatically and without further act be deemed to refer have assigned to each Lender or Additional Lender providing such Incremental Revolving Increases (each, an “Incremental Revolving Lender”) in respect of such increase or extension, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Xxxxxx’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the Increased Amount Date), percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (ii) the Administrative Agent shall have received legal opinionsmay, board resolutions in consultation with the Borrower, take any and other closing certificates and documentation all actions as required may be reasonably necessary to ensure that, after giving effect to such Lender’s Incremental Revolving Facility Commitments or Incremental Revolving Increases, the percentage of the aggregate Revolving Facility Commitments held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Facility Commitments of all Revolving Lenders presented by such Revolving Lender’s Revolving Facility Commitment (which may be accomplished, at the discretion of the Administrative Agent following consultation with the Borrower, (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Borrowing, (ii) by causing non-increasing Revolving Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Lenders or (iii) by a combination of the foregoing).
(i) Any Incremental Facility shall, as determined by the relevant Incremental Assumption Agreement Borrower, rank pari passu or junior in right of payment with the Obligations and generally consistent be unsecured or secured by the Collateral on either a pari passu or junior basis with those delivered the Obligations (and to the extent subordinated in right of payment or security, subject to intercreditor arrangements on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion terms reasonably satisfactory to the Administrative AgentAgent and the Borrower).
, (fii) On any Incremental Term Loans that are secured on a pari passu basis with the date Obligations may provide for the ability of the Lenders or Additional Lenders providing such Incremental Term Loans to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans (it being understood that any mandatory prepayments of any junior secured or unsecured Incremental Term Loans may not be made except to the extent that prepayments are made, to the extent required under the Term Facilities or (to the extent permitted hereunder) any Indebtedness that is secured on a pari passu basis with the Obligations, first pro rata to the Term Facilities and any such pari passu secured Indebtedness), (iii) the interest rate, upfront fees and original issue discount for any Incremental Term Loans, Incremental Revolving Increase or Incremental Revolving Facility Commitments shall be as determined by the Borrower and the Lenders or Additional Lenders providing such Incremental Term Loans, Incremental Revolving Increase or Incremental Revolving Facility Commitments; provided that with respect to Incremental Term Loans secured by Collateral on a pari passu basis with the Term Loans, in the event that the Effective Yield on such Incremental Term Loans (the “Incremental Yield”) exceeds the Effective Yield on the Term Loans hereunder by more than 0.50%, then the interest margins for the Term Loans hereunder shall automatically be increased to a level such that the Effective Yield on such Term Loans is 0.50% below the Incremental Yield (it being agreed that (x) any amendment to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the effectiveness of the Incremental Term Loans shall be included in determining the Effective Yield and (y) any increase in Effective Yield to any existing facility required due to the application of a Eurocurrency Rate or ABR “floor” on any Incremental Facility shall be effected solely through an increase therein (or implementation thereof, as applicable)) (such adjustment, the (“MFN Adjustment”), (iv) except as otherwise provided in this Section 2.22, to the extent such terms are not substantially consistent with the existing Term Facility, the covenants, representations, events of default and guarantees of any such Incremental Term Loans shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Revolving Facility, such covenant shall be deemed “reasonably satisfactory” to the maximum amount Administrative Agent if such financial maintenance covenant is (1) also added for the benefit of LC Exposure permitted hereunder any corresponding existing Term Facility or (2) only applicable after the Latest Maturity Date of any existing Term Facility), (v) the final maturity date of any Incremental Term Loan shall increase by an amountbe no earlier than the Maturity Date with respect to the Initial Term Loans (or, if any, agreed upon by Administrative Agentin the case of any Incremental Term Loans secured on a junior basis to the Incremental Facility or that is unsecured, the relevant Issuing Bank and final maturity date of such Incremental Term Loans shall be no earlier than the Parent Borrower.date that is 91 days following the Maturity Date), (vi) the Weighted Average Life to Maturity of any Incremental Term Loan shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to prepayments), (vii) subject to clauses (v) and
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Samples: Credit Agreement
